As a fundamentalist secularist, I have long favored a unified civil code. There is nothing secular about today’s chaos, where different religious groups are allowed to have separate personal laws on matters such as marriage, divorce, inheritance, and gender treatment.
Secularism means a common law for all. This already applies to criminal law. Muslim clergymen cannot cut the fingers of a thief by invoking Sharia law: they must abide by the country’s secular criminal law. If all religious groups have to follow a uniform penal code, why not also have a uniform civil code?
Same laws: people of all religions emigrate to Europe and the USA and follow the UCC that rules there
The constitution has a guiding principle that urges a UCC across India. This is not a local extremist idea of the BJP as Congress and some other opposition parties claim. It is a secular proposal for a secular constitution.
People of all religions emigrate to Europe and the USA and follow the UCC ruling there. No Muslims or Hindus in the US complain that their religious freedom is being destroyed by denial of polygamy or inheritance rules biased against women. Nobody in the US calls this minority oppression. Similar actions in India cannot be called repression either.
Ironically, the only party that advocated a secular UCC was a communal one, the BJP. Other parties have treated minority groups as vote banks, avoiding pressuring them to adopt personnel reforms, thereby avoiding 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 laws in the 1950s that modernized Hindu personnel law to better serve the needs of the people Constitutional prohibition on caste discrimination to make religion, gender or place of birth compatible. Since all religions had discriminatory traditions, conflicts arose between the principle of religious freedom and the principle of non-discrimination. Nehru modernized Hindu personnel law, but did not do so for other religious groups.
BJP manifestos have been passionate about a UCC for decades. Strangely enough, however, 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 local polarization and gain electoral advantages. That sounds implausible.
Creating a UCC cannot be done in a rush. It will necessarily be a long and arduous task involving all religious groups, including the judiciary. A UCC cannot just be a reform of the rights of minorities; it will also require reforms of some Hindu practices. For example, the Hindu Undivided Family has in practice become just a means of tax evasion that costs the treasury thousands of crores and should be abolished.
Modi should provide a framework for developing the content of a UCC, identifying all stakeholders who should be consulted, and ways to make decisions in areas of disagreement. Any attempt to turn a UCC into just a bare local election ploy should be rejected by the courts.
The Supreme Court has already elected a bench of seven judges in three cases to resolve the clash of two principles, freedom of religion and non-discrimination – the prohibition of menstruating women from entering the Sabarimala Temple, the prohibition of Parsi women with not -Parsian husbands entering Fire Temples and female genital mutilation by Dawoodi Bohras. Lawyer Fali Nariman has challenged the court’s right to examine these issues. Minority judgments in some Supreme Courts deny any need for decisions by a major bank, saying that non-discrimination must be a top priority under the Constitution.
Recently, the Supreme Court admitted five petitions from BJP attorney Ashwini Upadhyay to a UCC, pending government response. The government’s response should be that it will create appropriate advisory bodies to help shape a UCC framework. Great resistance will come from clergy of all religions. The court should make sure that this is a real secular constitutional exercise and not a Hindu electoral ploy to beat up other religions.
The Supreme Court has often expressed disappointment over the past few decades that the government failed to create a UCC. The court is right when it says that a UCC must be enshrined in law and not be left to the courts to rule through hundreds of judgments in various cases. Still, the Supreme Court needs to be part of the consultation process to ensure that everyone involved has their say. This will build social trust and avoid a zillion post-legislative complaints. This is the right way.
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The views expressed above are the author’s own.