India has always prided in, and drawn strength from, its diversity. But the maintenance of this plurality has come at a great legal cost – the creation of one of the longest Constitution in the world, and the creation of separate personal laws that govern intimate spheres such as marriage, inheritance, adoption as divorce. Above that, it has become an issue of secularism, identity and identity politics and of the possible future course of the country.
Do read about the Shah Bano case if you never had a chance to study it in school; it is one of the landmark cases that has shaped the modern politics of our country.
Uniform Civil Code would mean that all religious rules and regulations that govern personal life would come to an end, and all people, irrespective of their identities, would be governed by the same law. Many may actually find its lack peculiar; after all, isn’t the very purpose of a democracy to provide equal rights and equality before law? But here again we deviate from the west where these notions developed and come to the turbulent history of India. The British thought that the best way to ensure supreme power was to allow various communities to govern themselves, which also enabled them to put their divide and rule theory in practice.
B.R. Ambedkar and Nehru had both sought to implement the uniform code during the making of the Indian Constitution. The former especially recognized the oppression and denial of rights that minorities (such as Dalit and women) would face in the country and within their communities (such as women in the Muslim community) if religious laws were allowed to continue. But facing severe backlash from the other upper caste members of the Parliament and the general public, this idea was eventually abandoned.
Proponents of the Uniform Civil Code have quite a few persuasive arguments. Firstly, there is the fact that a lot of regional and religious laws allow for women to be discriminated on a variety of basis- be it in the allowing of polygamy, the ease with which they can be divorced, the issues that may arise regarding inheritance, etc. A particular code for all communities, if made properly could help eliminate such problematic laws, and the exploitation of loopholes that allow regressive authorities to remain in power. It may also lead to the reduction in the vote bank politics that characterizes the country, as prospective leaders will not be able to lure communities with particular favours in return for their votes. And of course, there is always the bright hope that it would bring about greater integration and equality in the country.
The issue is of course of the pluralistic cultural and religious fabric of the country. But does this argument really hold ground? It is of course understandable that one would wish to follow the traditions and customs prescribed by their own culture. But when it comes to the legal sphere, why should such particular norms and rules hold?
India, as you may realize, does not have the same conceptualization of secularism as the West – in other countries, secularism often means a complete division between the state and religions. In India, however, secularism means that while India is neutral to all religions, the state is allowed to intervene in religious matters where it deems so necessary. This understanding of the term allows the country to ensure that religion does not cause any strife or violence. But in reality, all this has caused in often opposed intervention by the government, while many areas of religious significance remain unaddressed.
As citizens of a country, all Indians should be entitled to certain rights, and these rights should come from the legal sphere, where equality, justice and freedom are the guiding notions; not from religions traditions that often use archaic norms and rules to keep certain sections in power. So if we do have a uniform civil code, it cannot be one based on the Hindu religion, or the Christian religion, or Islamic laws. It has to be based on objective, equally beneficial and unbiased laws. And this is where the Civil Code will have a true problem. Because right now we are still in crises of identity – we have a long way to go before we can consider an uniform code without community leaders and political parties making use of the discontent that may arise to stir violence to suit their own needs. But if we do get down to it, we will have to ensure that the rules are fair and objective from all points of view, for even a single misstep can lead the country back into a time of sharply divided lines.
By Niharika Rawat