Here's A Counter To Every Argument Against A Uniform Civil Code

21/11/2016 9:51 PM IST | Updated 24/11/2016 8:52 AM IST
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Rupak De Chowdhuri / Reuters
A man holds a banner during a rally organised by All India Muslim Personal Law Board (AIMPLB) in support of the Muslim Personal Law against what they say is central government's move to change it and impose the Uniform Civil Code across the country, in Kolkata, India, November 20, 2016. REUTERS/Rupak De Chowdhuri

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

So says Article 44 of the Constitution of India. It was introduced as a Directive Principle of State Policy in the face of staunch opposition to an immediate Uniform Civil Code (UCC), with the aim of reforming existing family laws. Today, 66 years later, these laws remain as scattered and oppressive as ever, and the time seems ripe for the enactment of a UCC.

Severing religion from social institutions such as marriage, divorce, succession etc. to secure fundamental human rights for all forms the essence of secularism.

Opposition to the idea of a UCC stems from the perspectives of "secularism", "multiculturalism" and the alleged tyranny of the Hindu religious majority. These contentions need to be unpacked and refuted one by one, while demonstrating what an ideal UCC should look like.

A threat to "secularism"

This argument perceives any attempt to introduce a UCC as tantamount to State interference in religious affairs. However, why should this interpretation of secularism prevail in the face of a conflict with our fundamental rights? In fact, severing religion from social institutions such as marriage, divorce, succession etc to secure fundamental human rights for all forms the essence of secularism.

While debating this issue in the Constituent Assembly, Dr. B.R. Ambedkar himself opined,

"I do not understand why religion should be given this vast, expansive jurisdiction, so as to ... prevent the legislature from encroaching upon that field ... We have this liberty to reform our social-system, which is full of inequities and discrimination ... which conflict with our fundamental rights."

Goes against multiculturalism

Painting a bigger picture of the debate surrounding the UCC necessarily involves addressing the perceived conflict between multiculturalism and universality as well. First up, one must note that the concept of multiculturalism is not entirely compatible with the prevailing political and social climate in India. In the West, minority rights for preservation of diversity were advanced after the separation of Church and State, but in India, these measures have reinforced inequality within religious personal laws, and have shielded them from reform.[1]

Next, the issues arising from "absolutism" within each culture warrant attention. Most religions in India are static and shielded from the effects of markets, democracy, development of human rights etc. Further, there exists no normative intra-cultural standard to gauge the legitimacy of its norms, and members follow practices simply because they have been handed down to them by elders.[2] The realisation that one's culture is incomplete/problematic only comes from a comparison with another culture, which must be the starting point for a UCC.

It is also a common misconception that a UCC runs contrary to the spirit of multiculturalism. We need to recall that our Constitution envisages a policy to harmonise interests in the Indian society, in the private as well as public spheres. However, these agendas are not pursued on an equal footing; while the Parliament has freed personal laws from State interference, the public sphere still fails to reflect cultural plurality; one finds a majority of our national symbols carrying a tinge of Hinduism, thereby alienating other communities. A shift in focus is required to promote such plurality in the public sphere.

Tyranny of the Hindu majority

Let's address the elephant in the room, shall we?

Minority communities often vehemently oppose the UCC, and in this context, the concerns floated by Wali Rahmani of the Muslim Personal Law Board recently are relevant: "A uniform civil code is not good for this nation. There are so many cultures, (they) have to be respected. India can't impose a single ideology."

This comment places minority rights and multiculturalism in direct conflict with the UCC. However, it should be noted that the starting point for this code is the identification of norms in tune with building a progressive, egalitarian society and ending oppression in the name of religion, as opposed to identifying a community whose norms are best suited to meet this objective. What is envisaged is not the imposition of practices of one community over all others, but the consideration of the practices of multiple communities. For instance, the concept of marriage as a contract embodied in Muslim law is more in tune with changing times than the "sacramental" nature enshrined in Hindu law. Further, it is desirable for child-marriages to be void ab inito (as under the Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954) rather than being considered valid (as under the Hindu Marriage Act 1955).

Several aspects of Hindu law are unjust and blatantly discriminatory, and are unlikely to find a place in a UCC.

The "single ideology" Rahmani mentions shall only, in Jack Donnelly's words, be "universal rights (and standards), not identical practices". The enactment of a UCC would not impact the religious membership or even celebratory practices of an individual. For example, while nikah, saptpadi, anandkaraj and other rituals of solemnising marriage should indeed be retained in a UCC, these must not be the criteria for its validity, which must depend on registration.

Rahmani's remark also depicts a major concern harboured by minorities — that this Code will facilitate the imposition of Hindu law over all Indian citizens. However, it is necessary to comprehend that its enactment is not a mere political question to be debated by rival parties and religious groups, though it has often been projected in a way that seeks to undermine minority communities. The Supreme Court's passing remarks on the UCC in issues litigated before it are made averring to the agenda of "national integration". The chain usually followed is striking down an unequal (mostly gender-unjust) practice in Muslim law, and recommending the enactment of a UCC, thereby creating a fiction that Hindus in India are subject to an ideal "secular, egalitarian and gender-just family code" that must be extended to all other communities.[3]

Nothing is further from the truth. Several aspects of Hindu law are unjust and blatantly discriminatory, and are unlikely to find a place in a UCC. Instances of these provisions range from the "legal death" of a Hindu upon conversion (with implications ranging from disqualification from maintenance from a Hindu spouse to a loss of the right to be the natural guardian of a minor and a converted child losing the right to inherit the property of a Hindu relative), abettors of child marriage being liable to a less stringent punishment, tax benefits conferred upon the Hindu Undivided Family etc.

Reforming existing personal laws?

Another popular argument against the UCC is that the ends of justice and national progress are equally achievable by reforming personal laws, without morphing them into a uniform code. However, fostering religious personal laws comes at a heavy cost. It perpetuates the "myth of State neutrality", whereas political leaders invariably interfere in religious affairs by pandering to religious leaders, suppressing dissent from minority groups within communities and securing their vote banks. Static personal laws also end up "freezing culture"[4] by embodying regressive practices and stifling internal opposition. Group leaders prioritise loyalty to one's religion over reform of individual human rights, rights of women and internal minorities that may happen to bring their identity closer to that of the majority.

[It] is vital to make the case for providing representation to all communities in drafting a UCC.

Currently, there is diversity of interpretation of practices within each community, facilitated by the existence of various castes and classes, and the interpretation of one section is often taken as dominant and representative of the entire community. For instance, the practice of adoption among Hindus is associated with the Brahminical ritual of "giving and taking" in adoption which excludes the fluid and secular customs and practices of the lower castes. Intra-community minorities are forced to choose between rights and religion, risking alienation from the community.

The realisation that our interpretations are constricted by the letter of the law and by practices that have persisted for centuries, often without accounting for the practices of minorities or a consideration of viable alternatives is vital to make the case for providing representation to all communities in drafting a UCC. There would be no need to raise the presumption of marriage for live-in partners to extend the protections of Hindu family law to them, if these relationships had been accounted for in the first place. Additionally, same-sex marriages find neither mention nor protection under our current system! All interpretations, especially interests of ideological minorities, need to be brought to the forefront for the success of this endeavour. Restrictive interpretation would be helpful only if we have a comprehensive and progressive code fostering the rights and best interests of every Indian citizen.

[1] G. Mahajan, Identities and Rights: Liberal Democracy in India, 7 (1998).

[2] J. Donnelly, The Relative Universality of Human Rights, 29 H.R. Quar. 281, 295 (2007).

[3] F. Agnes, Family Laws and Constitutional Claims Vol. I, 165 (2011).

[4] S. Chibber, Charting a New-Path Toward Gender-Equality in India: From Religious Personal Laws to a Uniform Civil Code, 83 Indiana L.J. 695, 703 (2008).

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