Guest post by Abhinav Prakash

Uniform Civil Code (UCC) is one of the most progressive mandates of the Indian constitution. Directive principles contained in Article 44 stipulates that: “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India”. But the bill could not see the light of the day due to strong opposition from the minorities, especially Muslims, and initially also from conservative sections of the Hindus who opposed the reforms in social practices of several Hindu communities. Consequently it was realised that state must first create a uniform code for each community which in itself is governed by various norms. Then these codes can be harmonised to create a Uniform Civil Code for all. As a result Hindu Code Bill came into being as it was made a priority task for the government of the day correctly sensing that it is the majority community whose reform should lead the way.[1] But after that all efforts came to a standstill due to opposition to any attempt to codify the Muslim law that is the only communal family law which remains to be codified although such an exercise has already been done on dozens of the Muslim countries and even non-Muslim countries like Philippines Code of Muslim Law 1977. Although compulsions behind putting UCC in cold storage are political, a web of complex and high sounding arguments has been woven to justify the lack of will and vision of the political class. In this sophistry they are joined by the intelligentsia who cloak the regressive agenda of scuttling UCC in the modern language of secularism, pluralism and democracy.

The most of the arguments of the “secular” apologists of the religion based personal laws are primarily based on three foundations-Multiculturalism, Secularism and Democracy. Therefore, it is important to examine them to see the soundness of these arguments.

First defence which is advanced against UCC is that of multiculturalism. Multiculturalism means a situation where a society contains more than one culture. But the word has two meanings which are rarely acknowledged. One is simply the description of the reality i.e society has more than one cultural stream to it and refers to the beauty and vibrant confluence which comes from such diversity. Second is the multiculturalism as a political ideology which seeks to preserve and promote the cultural diversity. It is argued that each community is different and has the right to be different. State must frame its policies to maintain and promote all different cultures. It is wrong for the state to intrude into the cultural realms of any community especially minority community. The communities have right to govern their social-cultural aspects and evolve them without any outside intervention. Therefore, it is wrong to create a UCC as such an act will be against multiculturalism and liberty of culture which is taken as the essence of India.

The argument is not only flawed on many accounts but a dangerous one as well. First of all it tends to privilege communal identity over the individual liberty and choice. Most of the people belong to a culture because they are born into it and being born into a cultural setup is not in itself an act of cultural liberty (although decision to stay in it after consideration of viable options is). When we compartmentalise people into various culture in the name of multiculturalism, we are branding them and stereotyping them as belonging to a particular set of values, thinking and behavioural pattern according to which they must behave. Also, culture cannot be defined solely on the basis of the religion and individuals don’t have just one identity-religious. Therefore, religiously defined personal laws cannot be argued on the basis of multiculturalism and individuals cannot be forced into them in the name of their religious beliefs.

Then multiculturalism is also flawed when it favours diversity for the sake of diversity. It is a negation of the objective reality that all cultures are not equally beneficial/suited for the progress of the humanity. To make this clear we can argue on the extreme that democratic culture is better that the nazi or communist culture or a culture which upholds sacredness of all life is better than the culture which glorifies and promotes violence against innocent beings. All cultures do not “ultimately” champion same values as is falsely believed and some are definitely better than the others. Culture with right of women to vote, right of women to equal wage, right of women to equal share of property, right of women to abortions is not just different but better than the culture which doesn’t have them. The parameters to judge cultures should be how much it provides for the development of the individual capacities and how much opportunities it provides to them to pursue goals they have reason to value. Whether it accepts equality of people without distinction of caste, class, race, gender etc or not and most importantly, how much scope is there for the further evolution of the culture?

Diversity is good but advocating diversity for the sake of the diversity often leads to a moral confusion. And multiculturalism today has become a camouflage for moral relativism i.e. no one value system is better than the other. Therefore, we have no right to evaluate or criticise, much less to change, laws of a community because it is based on their unique culture. So a law which treats children as the property of the parents is as morally just as the law which acknowledges them as free citizens with certain inalienable rights! It is this moral relativism which makes otherwise rational and progressive people ambiguous when it comes to gender inequality or even honour killings perpetuated by sharia courts or khap panchayats.

The argument of multiculturalism seeks to trap people in religiously defined cultural realms which in turn are supposed to be in a time warp. The misplaced pleas to let each community have laws based on their cultural sensitivity neglects the transformative role of law as the catalysis of change.

Second defence in the service of the personal laws is that of the secularism -“Secular India” must not interfere in the religious matters of various communities. However, a reverse point can be made as well i.e. why should a secular India give such sweeping exemptions based on religion? To quote Dr. Ambedkar in the constituent assembly-

I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.

Principle of secularism means that state will not discriminate against individuals on the basis of their religious beliefs or lack of it. But by instituting religion based personal laws state is doing precisely that! Secularism does not mean that state will not intervene in the religious-social-economic matter of any community if it has a reason to do so. Article 25, while protecting religious freedom also empowers state to regulate or restrict any economic, political, financial or other secular activity which may be associated with religious practices. Rulings on prayer, fasting, marriage rituals are by very nature uncontroversial and not the concern of the UCC. What UCC seeks is the secular reform of the power and property structures especially in respect of rights of women.[2]

Secularism in no way leads to different religion based personal laws which using religion as a shield are often immune from any rational enquiry. Also even if secularism somehow does justifies such personal laws, it is just one of the principle of the constitution along with equality before law, gender equality etc. There is no reason whatsoever for secularism to automatically supercede these principles in case of any clash. Secularism means separation of state and religion. It also means that secular state laws will take precedence over religious laws. It is perplexing that personal laws can be defended in the name of secularism. How can UCC be opposed in the name of secularism? How come in a secular state relations between state and citizens be mediated through religiously defined cultural boxes?

The third misguided opposition to UCC comes in the name of democracy. It is argued that it is undemocratic to impose a uniform law on the people belonging to different religions and cultures. But those who derive their arguments from this must first answer how much democratic is the system of divine/revealed laws? How much democracy do they see in the system where religious scholars with “requisite expert” knowledge have exclusive rights to interpret these divine laws and not the institutions of the democracy? Democracy is not simply “what people want”, that’s mobocracy and anarchy. What distinguishes democracy is the rule of law, the law based on logic and rationality, law formulated after due process of discussions, debates and yes, vote and not on the basis of unquestionable religious diktats.

The ideal of “one law for all” is the basis on which a modern liberal-secular-democratic nation rests. The aim of such law is to set people free in their pursuit of happiness and advancement whereas aim of law in the non-liberal and undemocratic system like Sharia is to control behaviour and extract obedience.

The misplaced opposition to UCC by a large number of intellectuals and political leaders today is based on the untenable ground. It takes a lot of imagination and sophistry to press secularism and democracy into the service of un-secular and un-democratic cause of religion based personal laws. And multiculturalism today is just a byword of moral relativism which argues that nothing is absolutely right or wrong and things are just different. It may or may not be true, that nothing is absolutely right or wrong, but what is true is that it’s the human ability to create standards of good and bad and thus differentiate between right and wrong which is at the root of the entire edifice of civilization.

The UCC is required in India for the ensuring the equal rights and equal treatment before law for every citizen without any conditions. The aim is not to dismantle religious rituals or concerns but to vest individuals with the liberty and power to challenge discrimination and reverse regressive trends in the name of religious concerns. At present rights, especially women rights are located in their own cultures that prohibit their equality and liberty. We wish to reform those spheres that perpetuate this discrimination, and the reform can only take place through UCC.

[1] The Hindu Code Bills were a series of laws aimed at thoroughly secularizing the Hindu community and bringing its laws up to modern times. The effect of the Hindu Marriage Act was to prohibit polygamy amongst Hindus and to increase the right of the divorced wife to maintenance or alimony. The act applied to everyone in India except Muslims, Christians, Parsees, and Jews.

[2] Patriarchy is the basis of all the personal laws. The reason inheritance laws are often ignored in debates which are dominated by marriage and divorce laws, because in this regard social inequity cut across communities.

( Abhinav Prakash is a Research Scholar in Economics at JNU )

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Abhinav Prakash Singh

Abhinav is a Doctoral Scholar in Economics, JNU. He has done his Masters in Economics from JNU and Economics (Honours ) from Hindu College, University of Delhi. His is interested in politics, history, economics, religion and hopes to grasp the reasons behind rise and fall of civilizations.

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