When ruling dispensations run out of viable ideas on political playoffs, they almost always resort to the politics of compulsion. By contrast, responsible governments which are committed to social progress use politics as an instrument to advance development, via progressive political agendas.
They recognise that programs of public benefit veer towards enhancing social-economic-cultural-welfare value. Politics where schemes are ideologically self-centred tend to approximate proxy agendas that segregate and carve up social dissection.
These proxy agendas often tend to garner votes using political camouflages. They tend towards populist tendencies, even though they are irrelevant. In the current political season, there are two levels at which political stakes are being played out. There is Manipur which is played out largely in the realm of conflict-crisis politics which has evolved into a colossal catastrophe. On Wednesday, July 19, a video emerged on social media, showing three women of the Kuki community who were stripped naked and paraded in public. They were also being sexually molested by some among the mob of men.
Appallingly, the Government of the day has consumed a concoction of political opium and set aside Manipur almost as if it did not even exist. The Prime Minister showed his back on the people of Manipur, even taking on two international travels that should have awaited a resolution in the state. In this process, the government in the State and the centre has tacitly consented to the victimisation of people. The turmoil persists until today. The consequences are glaringly perilous, yet the government in its dwarfed vision will not act.
The government has now come up with a previously constructed agenda to prepare for upcoming futures that will not merely confiscate Manipur from ongoing memory, but also create political hassles that are a blotch in the country within and overseas. The European Parliament even passed a strongly worded resolution on the Manipur crisis. It will probably fall on deaf ears unless the EU, as a whole, resorts to a boycott-divestment-sanctions strategy that could threaten Indian economic interests. This, of course, is a highly unlikely scenario.
The Uniform Civil Code (UCC) is the new political opiate introduced by the Bharatiya Janata Party (BJP to attract huge debate in wide sections of the polity. Given its timing and time table, the attempt to push through the UCC prior to the 2024 General Elections seems the ideal ploy to divert attention from the multiple failures of the government and its bit-by-bit diminishing fortunes. The BJP has marked it as an agenda to bring closure to a long-pending national question. Long imminent as it may have been, the government has never quite known where it should take the UCC.
To the BJP, the UCC is a non-starter. It is not proactively engaged in any kind of pro-active attempt to bring commonality to the country’s civil code. In fact, there is no ready-made reconciliatory-oriented instrument that will bond the various religio-cultural entities within the country. Non-Indic faiths already find the UCC threatening and suspect they are at the receiving end of what seems to be a political conspiracy to snatch their distinct identities and relegate them to subservient categories by enforcing traditions and customs that have survived the centuries without posing risks to national integrity.
These same arguments would apply to the millions upon millions of indigenous people in various parts of the country for whom customary laws will be snatched away under the guise of the UCC. Nor will it produce the gender justice that it pledges to pave the way for, the latter being a core question when it comes to evolving the UCC. True, the country cannot remain static on matters as crucial as an integrated civil code. That is not to say that a civil code has to be uniform. Integration can straddle multiplicity of intents that have non-competing facets. Uniformity is based on the intent to create and assert conformity to majoritarianism. Critics of UCC have already disregarded a ‘one-size-fits-all’ formula.
They are asking why the UCC cannot have a pluralistic approach to a Civil Code. There are widespread anxieties over what the Uniform Civil Code will do to disrupt and destroy India’s pluralism. Is the proposed UCC feasible for the nation’s integrity and concord? Will it set some communities aside and plunge them in the margins? Will the ruling party and its alliance partners segregate the nation while a common code is developed minus consensus?
The risks are huge in a country where differentiation and dissections are already being thrust upon people by political compulsions in other arenas. In fact, there are strongly expressed qualms that UCC as it is likely to be developed might actually be in contravention of the idea of India itself. This is not guess work. Political patterns we have witnessed have illustrated just how dominant ideas of one section of the polity can suppress many others based on a brute majority. For now, the Government seems to be certain of just one fact – that it wants a UCC to come into force. The contents of that are unclear.
The Opposition has asked for clarity, sometimes asking for even a single idea that the UCC will pursue. Either, the government has a plan in mind and would rather not divulge it. Or, it is clueless in so far as details are concerned. Will an inadequate UCC get approved with the brute majority that the ruling party has access to in the Parliament, meet the same fate of the CAA? The CAA remains a law that has no rules framed four years after its passing. Or, for that matter, the failed political goals of the removal of Article 370 and Article 36 in Jammu and Kashmir? Unless, the UCC is built around a political pact punctuated by consensus, it could easily be socially destructive, and be one more nail in the coffin of Indian democracy.
As important as political consensus is a democratic obligation, civil society must also be permitted to play its role and enable the shaping of the political formula that should emerge. As far back as 1947, Jawaharlal Nehru hastened the progression of reforming religious laws through a common code. That was confined just to the Hindu community, with the single view of modernising Hindu society and creating national unity. Soon enough, the code embraced Jains, Buddhists and Sikhs. It could be argued that Nehru’s strategy left the non-Indic religions out in the cold. In the zeal that characterised Independence, there were several actions that could have piggy-backed on the momentum that Independence itself brought to the fore.
Gripped by a positive sense of nationalism, the force of dialogue and nation-building and national integration may just have allowed for evolving a dialogue-based common set of working principles through which a UCC could have been set in motion. This government could well adopt the lessons of history and act, delayed as it may be, to come to a common understanding of what the essence and extent of a common civil code could resemble. Where do we begin?
Can we rule in options for dialogue and rule out those that are irresolvable? The Indian Constitution, which came into effect in 1950, was unequivocal. The State shall not legislate nor could courts enforce the UCC. The Constitution insisted on a dialogical approach that obliged the government to “endeavour to secure for all citizens a Uniform Civil Code.” These included laws that apply to everyone in India, replacing religion-based personal laws governing matters such as marriage, divorce, inheritance, adoption and succession. But the Constitution clarified that UCC was non-enforceable through courts.
In the 1950s, the Nehru government overcame opposition and arrived at agreement on several laws to codify and reform Hindu personal laws, a process which was started during the British rule of India. These included the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. Within the purview of all these, the UCC could still mystify settled questions such as the Hindu undivided family (HUF). Prime Minister Narendra Modi has argued for the implementation of a Uniform Civil Code (UCC) in India, stating that India cannot function efficiently with a system of “separate laws for separate communities”.
At this juncture in our history, this could be described as a simplistic dismissal of the pluralistic character of the nation which, in itself, is a composite nation within nations. It is the fusion of the many cultures that make India a unique country sanctified by multiple traditions/mores, religions, language, and ethnicities. Several key questions of justice underline the relevance of the UCC. For the UCC to be unifying there must be a plurality of approaches in addressing the challenges. There cannot be a hierarchy in terms of what comes first. One step at a time is the way to go but a comprehensive vision is needed to allow for a fusion of these steps.
If the UCC is to serve as a fundamental step in the direction of gender justice and social equality in India, its formulation must assure all citizens equal rights and opportunities under the law setting aside specific religion or cultural affiliations. Intricate concerns and interests of all rights holders including religious communities, women, and other marginalised groups must be factored in. This government which is habituated to pushing through legislations in unilateral ways must recognize the far-reaching nature of the UCC and adopt highest parliamentary standards.
Civil society claims and contentions that assume primacy in the formulation of the UCC must be factored in. In the final analysis laws are about people and a government that rides roughshod over people’s interests and aspirations will easily get the laws wrong. This has been proven on more occasions than one. When it comes to Personal Laws in India, in the contemporary context, not only Muslims but also Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws. Personal laws have, in their roots, the thought of religious identity.
In fact, even the reformed Hindu Personal Law still integrates specific customary practices. Issues and discrepancies emerge when Hindus and Muslims marry under the Special Marriage Act, where Hindus continue to be governed by Hindu Personal Law, but Muslims are not. Yet, there is a narrow focus on recasting the Muslim Personal Law and its provisions on marriage and what it sanctions? A National Family Health Survey (NFHS) 2019 puts the occurrence of polygamy among Hindus at 1.3 per cent against 1.9 per cent among Muslims. The previous Union law minister Kiren Rijiju had vowed that the government would place the issue of UCC before the 22nd Law Commission of India.
This contradicts what the 21st Law Commission had stated namely that such a code was neither necessary nor desirable at this stage” in the country. The question arises, why is there a tearing hurry to fast-track the UCC? Faizur Rahman, secretary general, Islamic Forum for the Promotion of Moderate Thought, recently said, “in so far as marriages are concerned, the Special Marriage Act which allows interfaith couples to marry is the UCC as envisioned by the Constitution framers.” In many ways, it is a rejection of personal laws governing marriage.
To repeat the claim I have made at the start of this article, there is no blueprint for a UCC with the government. Until there is a blueprint and a political process set in place, the Opposition and social movements/civil society should sternly oppose the move. The BJP has left the UCC as a private members bill ostensibly to avoid a backlash should things go awry preceding a general election. If ever the BJP were to introduce the bill, they would assess the momentum and then take a call. Opponents of the BJP’s UCC moves can take some solace at seeing the diffidence here. In fact, even BJP allies including the Shiromani Akali Dal, AIADMK, Mizo National Front have put brakes on the BJP’s subtle attempt to squeeze it in.
The opposition from several BJP allies is fierce and unshakable and rooted in the claim of religious rights and identities of minorities – religious and ethnic. They are sworn not to allow an erasure of customary laws across faiths and tribes. Tribal communities are equally peeved by the attempted back-door stab of the UCC by the BJP. Tribals know better that the UCC will nibble into their customary rights and traditions. The people of North Eastern States have written to the Law Commission that they reject any attempt to dilute the provisions of Article 371 A of the Constitution. From Meghalaya came a warning from a BJP leader warning the Government from interfering with the matrilineal societies of the state.
When it comes to marriage in India, personal laws single out queer people in general and, more so, heterosexual women. The UCC under the BJP is hardly likely to conciliate either of these two groups of people, even though the BJP pretends it stands for advancing women’s social and political rights in India. The BJP has shown notoriously political duplicity on issues such as Triple Talaq and marital rape. The BJP has vociferously supported repealing Triple Talaq citing “gender justice and equality” for not just Muslim women, but in fact for all “humanity”.
However, the same government took a dubiously opposite platform when it opposed pleas seeking to criminalise marital rape in India. The BJP argued that marital rape could not be treated as a criminal offence in India on the insubstantial grounds that “it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands”. The BJP also chose rather obscure arguments to oppose the legalisation of same-sex marriage in India. The question arises: If the Uniform Civil Code is introduced, how would uniformity get manifested for people of different religions, castes, genders, and sexualities?
The fear is that a Hindutva version of the UCC may be worse for women, notably for heterosexual women, and the queer community, especially sexual minorities. A BJP adaptation of fail-safe equal gender and sexual rights to all Indians seems quite remote when it comes to justice. The legalisation of same-sex marriages in India would be equally, or even more, complicated. The Prime Minister has adopted a populist, simplistic tactic. He reportedly asked a public gathering if a unitary family could afford to have different regulations and codes of conduct within the family.
The orchestrated chorus had been tuned to affirm a vociferous NO. Those who live in families know too well that no two children actually resemble each other in traits unless under acute disciplinary circumstances. The plank that the BJP is building may not survive, if only civil society sets the agenda, and other political parties unite to oppose the UCC. To win the vote in Parliament and to lose it on the street would be futile socially and politically.
The anti-CAA protests, the Farmers Movement, and a string of micro struggles all around the country should convey to the government the risks of overt anti-people laws. Resistance is mounting. The Opposition is readying itself to give the BJP a tough fight and the BJP can either dismiss their mobilisation or shift to democratic ways. The suspicion is that the BJP will use the UCC as a worn-out colonial era polarising tactic, set as a potential time bomb for the 2024 election. After having used up almost all its communal weapons, the BJP cannot call back issues of beef, hijab, and Ram Temple. They are not marketable and their shelf life has expired. Responsible citizens and the Opposition must offer insistent alternatives. Perhaps, this is a testing moment and the people must prevail in the interests of justice.
Ranjan Solomon is a political commentator, writer, and human rights activist.
Originally published in The Citizen