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The Uniform Civil Code Could Become A Bigger Problem Than The Discrimination It Claims To Address

Are we letting gender justice fall into the saffron trap?

05/01/2017 1:28 PM IST | Updated 06/01/2017 9:11 AM IST
Felix Hug

The BJP has deployed three myths about the law to drum up support for the Uniform Civil Code (UCC). These myths collectively and mendaciously project the view that the UCC is an obligatory constitutional mandate supported by a long line of judicial decisions, that Directive Principles are unconditionally sacrosanct and Muslim personal law presently cannot be questioned on the touchstone of constitutional morality. The reality, however, is quite far away from this. Not only are Directive Principles, including the UCC, not binding or paramount, they are distinctly subordinate in the hierarchy of constitutional obligations and it is only uncodified customary Muslim personal law that currently escapes constitutional scrutiny.

[C]rude straitjackets like the UCC risk pushing us deeper into the ditch of inequality.

However, apart from its deliberate misreading of law, BJP also brings a bundle of contradictions, old prejudices and a deepening crisis of credibility to the scene. The fact that all debate on UCC takes Muslim personal law as its focal point and is charioteered by a Hindu nationalist party in months leading up to UP elections casts a long shadow on the feminist credentials of the BJP. The gender-justice claims made by the party would be considerably easier to appreciate if the party had engaged and aligned itself with feminist causes and organisations in the past, acknowledged patriarchy as the principal issue across all religions and been slightly more meditative on questions of justice. It cannot just be a coincidence that not a single major feminist organisation has supported the idea of UCC over the last two decades. Anyone serious about gender justice in a highly ossified patriarchal mould like India would be keen on cultivating the image that they are doing the right thing for the right reasons and are open to genuine discussion that is not foreclosed by electoral math. They would also be careful about not letting any other issue distract from the core question of gender discrimination and inequality. Instead what the BJP has managed is a high level of communal wrangling that threatens to colonise the debate on gender justice—the UCC will soon begun to be seen as a bigger problem than the discriminatory laws and practices themselves.

The fact that these social divisions have been effected without so much as even a preliminary draft of the UCC says all that needs to be said about the sincerity of the government in pushing the cart of gender justice. If the BJP is sincere, it should work overtime to put out a draft and not let the debate be seized by the spectre of violence. A draft has now become a litmus test, an agnipariksha of sorts, for the BJP to signal its scrupulousness on gender justice.

Equal laws vs. uniform laws

The BJP also needs to convince the nation that it understands the relationship between two pairs of ideas that are central to this debate—diversity and discrimination on one hand and equality and uniformity on the other. It cannot lazily assume that a uniform code is inherently consistent with the constitutional vision of equality or that it exhausts all ways of thinking about it.

The BJP has inherited an ancient disquietude with religious diversity and has always seen it as a countervailing force to nationalism, especially in the case of non-Indic religions...

The BJP has inherited an ancient disquietude with religious diversity and has always seen it as a countervailing force to nationalism, especially in the case of non-Indic religions whose constituencies do not overlap neatly with the territorial boundaries of the Indian nation-state. The argument that legal and cultural pluralism weakens the idea of nationhood is however not creditworthy in the Indian context. National identity, a post-colonial preoccupation of practical value, has to be forged through and respond to the charged cleavages of communal identities, not imagined a priori without them. At the heart of the project is a fundamental question: What common identity is available to everyone despite segregating ties of caste, ethnicity, language and religion? Any answer to this question cannot be found without grasping the nature of our social life, the psychological estrangement that its partitions harvest and preparing for its likely consequences.

Ethno-nationalisms or linguistic nationalisms can serve as the template of national sentiment in countries with homogenous populations where these identities unite and not divide. In India, where all communal identities produce their "other", the challenge is to find an enveloping identity that conceals all social trenches without alienating any of them. Constitutional citizenship is that cloak which envelopes, without antagonism and judgment, the deep divisions crisscrossing the country. If equal citizenship becomes the fulcrum of nationhood, it is possible to see national identity getting comfortable with and shaped richly by pluralism. The challenge is not to tighten the screw on difference but on narrow and nervous conceptions of nationhood.

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Diversity is not discrimination by default

Legal pluralism, or the co-existence of multiple legal orders, is a consequence of social pluralism and not the other way round. If we do not understand pluralism itself as the challenge but the incompatibility of values and practices generated by it, we can think of ways to get around it without closing the lid on diversity.

The challenge is not to tighten the screw on difference but on narrow and nervous conceptions of nationhood.

Discrimination is not an inevitable consequence of different legal orders, provided there are effective coordination mechanisms between these legal systems. Codification of Sharia law is one such mechanism that extends constitutional supervision over Islamic law without compromising on its unique provenance. What we need is a consensus on fundamental principles that bind different legal systems within a constitutional framework rather than an unflinching uniformity of laws. Equality is one such point of consensus and if the constitutional pursuit of equality has taught us one thing, it is that equality demands differential treatment of differently situated individuals and communities. This allows for a debate on what counts as difference, who all are different and why—but once the fact of difference is established, no legal barrier prevents the application of different laws as long as all these laws measure up against the same constitutional standards. The social and political contract stitched in 1950 requires the sameness of Constitution, not of laws and policies.

This is understood better in the context of taxation where a uniform tax regime without different slabs or progressive burdening would lead to grossly inequitable and unfair outcomes for the poor. Similarly, a uniform increase in public transport fare disproportionately burdens the poor compared to the middle class. Imposing proficiency in Bengali language as a minimum criterion for jobs or admissions is bound to affect Tamils, Marathas and Bengalis differently, even though one uniform benchmark is used.

Equality requires us to demonstrate equal commitment in speaking to unequal conditions, not the same means and methods. This assumes the ability to make careful distinctions and thoughtful judgments about the social cost and long-term consequences of State action. Unless what is being uniformly imposed happens to be a minimum core obligation, crude straitjackets like the UCC risk pushing us deeper into the ditch of inequality. Repeated analogies are drawn to the uniform application of criminal laws in India to make a case for UCC. There can be some confusion here but one way of thinking about the criminal law example is this—just as it is uniformly a crime to murder someone, it is also always a crime to have an unconstitutional personal law. Claims of constitutionality will be examined by the court just like claims of innocence in a murder trial but unconstitutionality is the crime, not lack of uniformity. If we understand how offence is defined in constitutional terms, we will grasp the similarity between two examples.

Uniform Civil Code is not a core constitutional commitment whereas equality, non-discrimination and religious freedom are indisputable obligations of the constitutional state.

The Uniform Civil Code is not a core constitutional commitment whereas equality, non-discrimination and religious freedom are indisputable obligations of the constitutional state. It would be monumental travesty to subject different communities, each with its own vocabulary and grammar of existence, to one unyielding code. The fear is that such uniformity will exact the high price of religious freedom besides empowering constituencies of communal conflict.

Of silences and stereotypes: The homogenising thrust of UCC

How do you forge a consensus between two individuals who speak different languages, say Sanskrit and Persian? Do you measure one language against the other? Will it be acceptable to both? The Uniform Civil Code will force us to scale up and ask the same question in the context of India's overwhelming religious and ethnic diversity. It will hopefully also help us realise that an external critique of diverse cultural practices requires a mutually accepted arbiter. We will need a new language, acceptable to both Sanskritists and Persians, to unlock two different linguistic systems and make value judgments about them. In the context of legal and social pluralism, constitutionalism is the common language comprehensible to all camps. There are significant differences not only between different religious systems but even within the same religion owing to differences in history, topography, political contestations etc. To project a monolithic image of any religion—hoping certain common stereotypes or practices can capture its essence—was a colonial blunder and still showcases the failure of social imagination.

[T]he uniform code campaign is propelled less by considerations of gender justice and more by the majoritarian thrust evident in the Hindu Code.

The Hindu Code, apparently an example in favour of uniformity, makes some distinctions and exceptions in matters of marriage and inheritance. Despite these detours, the Hindu Code is accused of being hegemonic as it has legally sanctioned the engulfing of smaller religions and sects by the haze of high-caste Hinduism. Patriarchal practices like kanyadan and saptapadi are introduced in the matrimonial lexicon for Buddhists, Jains, Brahmos and Prarthna Samajis. Nivedita Menon and others have argued that the uniform code campaign is propelled less by considerations of gender justice and more by the majoritarian thrust evident in the Hindu Code. There is some merit in this accusation. Collective confabulations of polygamous, berating, beef-eating man need not dominate a dialogue with the Muslim community. Significant differences on questions of marriage and divorce, as well as examples of progressive practices, abound within the Muslim community too that need some space in our conversations. The other egregious and deafening silence persists on the status of customary practices of 110 million tribals in India. Little thought has gone to the question of heterogeneity prevalent across 250 indigenous tribes in India. Which customs, in the BJP's understanding, would feature in a common code for the personal laws of these tribes?

Does the BJP's conception of the code allow a radical reimagining of the family consistent with constitutional commandment of equality?

Even once we manage to build some consensus on unjust practices, how will the UCC translate and accommodate non-discriminatory and just practices that are difficult to understand outside their specific theological or cultural ecosystem? The provision of mahr, progressive as it may be, is sourced from Quranic injunctions and will be difficult to pitch to Non-Muslims. The contractual nature of nikaah makes it easier to define and protect the rights of married or divorced partners yet it is anyone's guess if that would convince the Hindus to let go of the sacramental associations of "indissoluble" marriage. Would RSS ideologues like MJ Vaidya be forced to relinquish voting rights for their reluctance to follow gender-just Islamic practices? Amidst a declining population, the need to preserve a distinct cultural identity can legitimately push the Parsis to adopt practices different from other communities. Could such claims made by Parsis or Buddhists or Jains be accommodated within the framework of a Uniform Civil Code? Could patriarchal notions give way to matrilineal families under the Code? Does the BJP's conception of the code allow a radical reimagining of the family consistent with constitutional commandment of equality? The chances of obtaining a social-political consensus without engaging with these questions are bleak at best.

Legislating for an imagined community

However these reservations should be considered on their merits, not summarily dismissed as entailments of political antagonism and malice towards the BJP. Nor should this be seen as an alibi for the All India Muslim Personal Law Board and their characteristic but staggering failure to capture the mood of the Muslim community.

If the BJP [produces] a draft that leads to consensus... and addresses all anxieties about constitutional chicanery and rights violation, it would be a supreme legislative and political achievement.

Our hope is not that the BJP fails in its honest pursuit of gender justice but that it remains sincere to the task and carefully considers the cost of a uniform code. If the BJP manages to produce a draft that leads to consensus without conflict and addresses all anxieties about constitutional chicanery and rights violation, it would unquestionably be a supreme legislative and political achievement. It also bears retelling that the BJP is being addressed here not because other political parties have historically been more gender-just or less communal but only due to its professed commitment to Hindutva and its unprecedented control of the legislative process. The BJP has not only revived this old simmering debate, it is also in a position to lay the legislative groundwork for codification and (de)stabilise a conversation on gender justice. The fact that BJP and the Sangh Parivar nurture and govern the constituencies of majoritarianism cannot be overlooked by anyone interested in mapping the trajectories of this debate. What also cannot be overlooked is the reason why India is considered such an extraordinary experiment in constitutional history around the world and how that special place risks being undermined through a uniform code.

The Indian Constitution is a pacesetter across the world precisely because of its astute management of diversity, its delinking of citizenship from compulsory communal identities and its success in resisting the urge to define national identity narrowly. A uniform code is an ordinary gut response to a complex social circumstance. It not only tragically misdiagnoses diversity as the disease, it also invents a monoculture called India and administers an asphyxiating pill. Trepidations around the code will significantly subside if the BJP ceases to legislate for this imagined community and commits itself to thoughtful dialogue around the peaceful codification of Sharia and customary law. As Pratap Mehta has presciently argued, the struggle to shape social practices in the mirror of law will be the more difficult and decisive battle for constitutional justice in years to come.

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