by Prakruthi Jain, Ayush Bajpai and Sandeep Pandey
“A just code should be the primary goal as just laws are more important than a mere one uniform law.”
Manipur is in turmoil since beginning of May. Prime Minister Narendra Modi has not said a word about it. Despite being in the midst of continued violence, he did not cancel his trip to the United States. Upon returning he has instead decided to raise the issue of Uniform Civil Code. Is it a ploy to deflect attention from Manipur?
The PM has, on several occasions, argued in for uniform laws for all citizens, emphasizing on the constitutionally enshrined principle of equality. Apart from Ram temple in Ayodhya and revocation of Article 370, Uniform Civil Code has been on the agenda of the ruling Bhartiya Janata Party ever since its inception. However, a pertinent question is when there are other important Articles in the Directive Principles of State Policy, Part IV of Indian Constitution why is the BJP or its parent body, the Rashtriya Swayamsewak Sangh interested in raising only Article 44, UCC? For example, Article 39 says State shall make policies such that citizens have the right to an adequate means of livelihood; ownership and control of the material resources of the community are so distributed as best to subserve the common good; operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; etc. Article 40 says State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as unit of self-government. Article 43A says State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. Article 47 says State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
The importance of abovementioned Articles from Directive Principles is self-evident. Each of them, and others as part of DPSP, have the potential to qualitatively transform the lives of ordinary poor of this country for the better. However, on most, the government seems to be acting in the opposite direction. Concentration of wealth is a natural outcome of neo-liberal economic policies, natural resources are being monopolised by the Corporates with the help of government, village panchayats have been made totally dependent on State governments, workers are being marginalised in their setups, India stands worst in the world in terms of one of the child malnourishment indices and drugs land from Pakistan-Afghanistan on Adani’s port in Mundra, Gujarat which enjoys government’s patronage.
The reason for BJP-RSS to initiate the controversial UCC issue seems to be to propel their Hindutva agenda further and even to the extent of making the Muslims the second-class citizens, which will polarize the society deeply target the Muslims as it has the potential to mobilise the majority votes.
There is a requirement to look into the arguments on whose basis the idea of the UCC is being propelled apart from the hidden agenda of the BJP to polarize the society and gather votes for the upcoming elections. These arguments are largely coming from certain stand-points and they are shaky in themselves as none of it requires a UCC for them to be realized, or the UCC in itself will be insufficient to fulfill those aspirations. Two of them are:-
- Gender Justice: It is often and rightly argued that the personal laws of almost all the religions, and even amongst certain tribal populations, are skewed against women in terms of inequality in marriage and the property rights amongst others. However, reforming the personal laws is always a better alternative, rather than imposing the UCC on the entire population, as the same was envisaged by Dr Ambedkar in the Constituent Assembly Debates, that the UCC however is desirable but cannot be imposed upon any community.
- National Unity: In its 2018 Report, the Law Commission opined that UCC is neither necessary nor desirable at this stage. In view of the cultural and regional diverse character of the country, the Commission warned that while framing the law, cultural diversity should not be compromised, and the Commission is also of the opinion that the UCC will in itself not become a reason for national unity and integrity
A Uniform Civil Code is conceptualized by the formulation and implementation of personal laws applicable to all citizens of India, irrespective of their religion, sex, gender, or sexual orientation. At present, different communities are governed by different personal laws based on the religious scriptures, the juristic interpretations, etc.
Recently, the Law Commission of India has invited suggestions and views on the proposal of a UCC from the public and recognized religious organizations. Pertinently, the Law Commission in 2018 had opined that a UCC is “is neither necessary nor desirable at this stage” in a country like ours.
One of the justifications for UCC has been that it would result in achieving an equal and just society. It is pertinent to ask what the meaning of equality is as per our Constitution. Can equality be read as opposed to personal and religious freedoms enshrined in Article 19 and Article 25? The settled rule of constitutional interpretation is to read provisions harmoniously, and hence such a conflicting interpretation cannot be supported.
The idea of a UCC seems to be very promising and idealistic, but may not be viable to the Indian experience and the Indian society, which is multi-religious, multi-ethnic, and multi-cultural. The implementation of a UCC as a single code applicable to all citizens of the country across the religions would enable the UCC to meddle with the nature of the marriage, adoptions, divorce, inheritance, the structure of the family system and so on; it is also feared that the UCC will render the concept of Hindu Joint Family outside the legal horizon, and since the marriages which are said to be civil marriages are contractual in their character which is in stark contrast with the concept of a sacrament nature of the Hindu marriage. The UCC would seek to provide a uniform law or one law for the entire country applicable to all religious communities in their personal matters relating to marriage, divorce, inheritance and adoption etc. At the same time, it is argued often that a UCC would promote gender justice and ensure equality among genders. But since legal pluralism exists in Indian Society, UCC is a distant dream in India. Our society is religiously pluralistic and legal pluralism coincides with religious pluralism, which cannot be discarded for the form of uni(form)ity that a UCC aims for. If we accept legal pluralism as a reality, not only to be tolerated but to be preserved and cherished as mandated by the Constitution, UCC is threat to this pluralism and we must strive for other ways to reform personal laws.
The UCC in its current form is a half-baked idea, and any debate about whether it would be able to fulfill its promise and live up to its expectations or it would create a sharp, deep divide amongst the groups in society and destroy the individual and religious liberties, is like putting the horse before the cart.
The defenders of UCC defend it by defining the UCC as a modern and liberal piece of law which would bring about equality, gender justice, and social reform, without hampering any of the other civil and personal liberties, without interfering with the customs and cultural practices. On the other hand, skeptics view UCC as code which would completely destroy the diverse social fabric of the country and is against the very basic tenet of equality as it could be a garb for majoritarianism.
UCC is still a vague as there hasn’t been any proposed draft till date; the BJP Government in Uttarakhand though has formed an expert committee for the UCC, but it has also not come with any draft; even the much celebrated Portuguese Civil Code, 1867 being in force in Goa is not an example of UCC contrary to the then CJI S.A. Bobde’s claim, as its application is not uniform across all communities and has some seriously problematic provisions such as that if a wife cannot conceive a son by her age of 30, the husband may marry again.
The main question is not whether UCC is good or bad, that can only be decided after we actually have a draft ready. But the relevant question is do we even need to be uniform to be equal? It would be foolish to equate uniformity to equality. Our Constitutional Morality to respect the difference and treat people with equal respect, having equal rights. Equality cannot be confused with similarity, rather it means respecting and cherishing the differences. Hence, the moot question that needs to be asked today is whether to achieve the goals of an equal and just society and to promote gender justice, do we really need to be uniform? And whether bringing about such uniformity is possible, viable, and effective?
In historical societies, it is a normal occurrence for peoples of distinct languages and cultures to coexist and extremely uncommon for a society to comprise exclusively of people belonging to a uniform language and culture. What can be seen is that emphatic efforts have been put in to bring about uniformity in the name of nationalism and unity and integrity. One instance of this can be seen in the policy of Icelandicization, pursuant to which immigrants in Iceland are compelled to change their names and take up an ancient Icelandic name. This sort of need for uniformity is felt in many postcolonial states and is starkly in contrast with pre-colonial states, which were tolerant to diversity.
Although reforms in personal laws are a long pending necessity, one cannot use a steam hammer to crack a nut, if a nutcracker would do. To realize the ideal of equality and gender justice, the way forward would be to regulate personal laws, by placing sufficient constitutional checks against inequality, inhuman treatment, gender discrimination, etc. as guaranteed by articles 14, 15 and 21.
Gender equality and social justice cannot be a garb for imposing majoritarianism. Our constitution is inclusive and not majoritarian. In the garb of a uniform civil code, we cannot have an unconstitutional civil code, which violates the basic feature of secularism, effaces the freedom of religion.
Prakruthi Jain and Ayush Bajpai are students of law at NALSAR, Hyderabad and Sandeep Pandey is General Secretary, Socialist Party (India).
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