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Follow Religion, Abandon Religious Laws

14/07/2016 6:27 PM IST | Updated 17/07/2016 12:45 AM IST
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Narendra Modi's menu card for May 2014 -- the election manifesto -- had a gamut of items on it, some of them rather piquant. One among them was "to legislate Uniform Civil Code" in the Republic of India. Very recently, the NDA dispensation in a surprise move asked the 21st Law Commission to examine the feasibility of the idea.

As far as regulation of law and order in post-independence India is concerned, the criminal law framework was recast in 1973, but largely modelled on the Criminal Procedure Code of 1861 passed by the British Parliament and assented to by the Crown. However, civil issues like marriage, divorce, inheritance, succession, etc. had much religious bearing. Given the extreme religious diversity in India and the British policy of non-interference, these matters were initially left for local satraps, religious courts and panchayats to deal with.

There exists a vexed tripartite debate between fundamental rights, religious beliefs and gender equality.

Each of the religious traditions in India is endowed with a set of well-codified religious laws to regulate the moral, ethical and social aspects of the followers' life. In Hinduism, there is a corpus of dharma-sastra (religious laws) literature, Manu Smriti (or Laws of Manu) being prominent among them. Buddhist monks codified their regulations during the First Buddhist Council c. 400 BCE, immediately after the death of Shakyamuni (Gautama) Buddha. Islam has the most stringent of civil and criminal jurisprudence known as Sharia, with many Fiqh interpreting it diversely. Under Christianity, Catholics have defined their civil and canon laws that are often updated through synods and further clarified through Papal encyclicals.

Each of these laws is centuries or even millennia old. They comprised too holy and incendiary a territory for British authorities to traverse and re-regulate. A similar opinion was voiced by the first pre-independence Law Commission of 1840, headed by Lord Macaulay, which warned of perturbation if an attempt was made create a uniform lex loci. Nevertheless, the legislative machinery of India has time and again tried to regulate important subjects bit by bit. Starting with the Contract Act and the Transfer of Property Act, both of 1872, more than 18 statutes have been legislated to deal with just matters of property.

However, the real tension exists in issues where religion matters (property not being one of them)! Constraints of space to not permit an exposition of the entire legal history of a century, but there exists a vexed tripartite debate between fundamental rights, religious beliefs and gender equality. The overview of complex civil suits in India only illustrates the obvious -- the faith entrenched in religious laws and customs has either been in direct contravention of constitutionally enshrined fundamental rights or has been proved a travesty of justice for Indian women, keeping them denied of liberty and equality.

Religious laws, of whatsoever religion it may be, are in direct contradiction with the Westphalian concept of a State.

Now, the Constitution guarantees equality before the law irrespective of gender and religion (Art. 14 & 19), ensures the freedom to practice religion and following religious laws (Art. 25), and simultaneously includes a directive principle for the Union of India to comply with the Uniform Civil Code (Art. 44). This ambivalence has led to the creation and dissolution of some personal laws. The striking down of the Travancore-Cochin Christian Succession Act (1916) in the favour of one Mary Roy (mother of famous author Arundhati Roy) is a fine example of the ambiguity evident in the book.

Outside of the rulebook, mainstream social resistance has fervently tried to preclude the obliterating of religious laws. The herculean task attempted by Jawaharlal Nehru and his cabinet colleague Ambedkar of forming the four Hindu Code bills in the mid-1950s was intensely repudiated by Congress parliamentarians and the Congress women's wing. It was seen as an act of meddling in the private life of a Hindu citizen. Eventually, those bills were enacted and unintentionally, they legally unified the followers of the multi-stranded religion of the majority of India.

Six decades later, barring a few grey areas that remain unregulated, Hindus are complying with those statues. A novel Uniform Civil Code, for Hindus, will only be an ameliorated version of the existing codes. The ecclesiastical authorities representing Indian Christians have already acceded to the call for uniform regulation. The only opposition Indian lawmakers face is from the Muslim Personal Law Board that is trying to buy immunity under the Muslim Personal Law (Sharia) Application Act, 1937.

Below are a few logical reasons why separate laws are not a very good idea for twenty-first century India.

1) Religious laws, of whatsoever religion it may be, are in direct contradiction with the Westphalian concept of a State. Accordingly, the ultimate primacy should be of the State and not of other factors like religious principles. Thus the power to legislate and adjudicate in any matter should rest with judicial organs of the State and should never be assumed by quasi-judicial religious law boards.

It is an indisputable fact that women have been relegated to an unequal position in varying degrees in all religious laws.

2) Similar to the previous point, separate civic laws differentiated on the basis of religion are not in consonance with the democratic spirit of equality. In a democracy, which India is, all citizens must be treated equally before the law without discrimination on the basis of gender or religion. Neither do religious laws conform to the pluralistic spirit of democracy nor do they conciliate with unity in diversity. Conversely, they entail the trepidation of further social polarization and incentivizing conversions.

3) Separate laws will never allow the subduing of identity markers into an independent national identity of an Indian. Legally, each citizen will carry a dual identity marker -- that of an Indian and of his or her religion. The religious stratification of India into watertight compartments would further intensify. India needs to be unshackled from the yoke of religion as a discriminating identity marker.

4) Religious laws are centuries and even millennia old. They are out of sync with the social, technological and cultural advancements that have taken place over the ages. While certain moral and ethical dimensions may still be invaluable to society, the argument of treating archaic mores as infallible or as laws in the contemporary context does not hold water.

5) It is an indisputable fact that women have been relegated to an unequal position in varying degrees in all religious laws. The concepts of women empowerment and gender equality will never materialize in their entirety until India does away with archaic and arcane laws that relegate women to an inferior position.

For some, religious emotions far outweigh the aforementioned rationales. Yet, it is imperative that an attempt be made to make a distinction between religion -- a faith in a supreme being appended with a commitment to a pious and moral life -- from a contextually outdated set of social customs called religious laws.

Thus we say, follow religion, abandon religious laws.

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