As a fundamental secularist, I have long favoured a Uniform Civil Code. There is nothing secular about today’s mess where different religious groups are allowed to have separate personal laws for issues like marriage, divorce, inheritance, and gender treatment.
Secularism means a common law for all. That is already true for criminal law. Muslim clerics cannot cut off the fingers of a thief citing Sharia law: they have to go by the secular criminal law of the land. If all religious groups have to follow a uniform criminal code, why not a uniform civil code too?
The Constitution has a directive principle urging a UCC across India. This is not a communal extremist idea of the BJP, as the Congress and some other Opposition parties claim. It is a secular proposition of a secular Constitution.
People of all religions migrate to Europe and the US and follow the UCC prevailing there. No Muslims or Hindus in the US complain that their religious freedom is being wrecked by the denial of polygamy or inheritance rules biased against women. Nobody in the US calls this oppression of the minorities. Similar action in India cannot be called oppression either.
Ironically, the only party championing a secular UCC has been a communal one, the BJP. Other parties have treated minority groups as vote banks, avoided pushing them to accept personal law reforms, and hence avoided their Constitutional duty to work towards a UCC.
Jawaharlal Nehru took on the Hindu establishment, including President Rajendra Prasad and former Congress president Purushottam Das Tandon, to pass four Hindu Code Bills in the 1950s modernising Hindu personal law to make it more compatible with the Constitutional bar on discrimination on the basis of caste, religion, gender, or place of birth. There was a clash between the principle guaranteeing religious freedom and the principles guaranteeing non-discrimination, since all religions had discriminatory traditions. Nehru modernised Hindu personal law but funked doing so for other religious groups.
BJP manifestos have for decades argued passionately for a UCC. Yet, curiously, Narendra Modi has been conspicuously reticent on this issue despite having a massive parliamentary majority that the BJP may never have again. Some think he will propose a UCC before the next general election to create communal polarisation and derive electoral benefits. That sounds implausible.
Creating a UCC cannot be rushed through. It will necessarily be a long and painstaking task involving the participation of all religious groups and the judiciary too. A UCC cannot just be a reform of the personal law of minorities; it will require reforms of some Hindu practices too. For instance, the Hindu Undivided Family has in practice become just a tax-dodging device costing the exchequer thousands of crores, and should be abolished.
Modi should come forward with a framework for working out the contents of a UCC, identifying all the stakeholders that should be consulted, and laying down ways of reaching decisions in areas of disagreement. Any attempt to make a UCC just a naked communal electoral ploy should be struck down by the courts.
The Supreme Court has already decided on a seven-judge bench to settle the clash of two principles, freedom of religion and non-discrimination, in three cases — the prohibition of women of menstruating age from entering the Sabarimala Temple, the prohibition of Parsi women with non-Parsi husbands from entering fire temples, and female genital mutilation by Dawoodi Bohras. Lawyer Fali Nariman has challenged the court’s right to consider these issues. Minority judgments in some Supreme Courts deny any need for decisions by a bigger bench, saying non-discrimination must reign supreme as per the Constitution.
Recently, the Supreme Court admitted five petitions from BJP lawyer Ashwini Upadhyay on a UCC, and awaits the government’s response. The government’s response should be that it will create appropriate consultative bodies to help fashion a UCC framework. Huge resistance will come from clerics of all religions. The court should satisfy itself that this is a genuine secular Constitutional exercise and not a Hindu electoral ploy to bash other religions.
The Supreme Court has, in past decades, often expressed disappointment that the government has failed to create a UCC. The court is right in saying that a UCC must be legislated, not left to courts to decide through a hundred piecemeal verdicts in different cases. Nevertheless, the Supreme Court must be part of the consultative process, ensuring that all stakeholders have their say. This will instill social confidence and avoid a zillion post-legislative suits. That is the way to go.
