Legal reform

BJP's rhetoric on Uniform Code undermined by its silence on laws favouring majority

From apostasy laws to differential tax rules, there is no dearth of legislation in India based on religion. Adding these to its reform list would make the BJP’s job of introducing a UCC that much easier.

The Bharatiya Janata Party’s resounding win in the Lok Sabha elections has brought one of its pet issues back into focus: the establishment of a Uniform Civil Code to replace the current system by which followers of different faiths are subject to religious personal laws relating to marriage, inheritance and other matters.

In theory, the argument that religion should play no role in the laws of a secular republic is difficult to refute and indeed the establishment of a progressive legal code would do much good. But in practice, the BJP’s rather high-pitched espousal of the UCC has perhaps done more harm to the cause than help it.

The party’s portrayal of religious personal law as the one barrier standing between India and “true” secularism is hyperbolic. The situation is far more complex. Contrary to common knowledge, religious personal laws in India have not been static. Significant parts of these codes, especially those relating to minority communities, have already been reformed as a result of legal intervention resulting from cases challenging these statutes.

For instance, despite Rajiv Gandhi’s decision to reverse a court decision in 1985 Shah Bano case ordering a Muslim man to pay his wife maintenance, the courts have reaffirmed the rights of Muslim women to alimony. The egregious triple talaq rule was overruled in the Shamim Ara case in 2002, which held that the husband did not have a unilateral right to verbal divorce when there was “no substantial evidence” of the man having pronounced the three words.

It is rarely acknowledged but there are a number of other provisions in India that work on explicitly religious or communal principles, all of which are also in urgent need of reform. On these the BJP has maintained a studied silence, in some cases even propagating them. The notable provisions are listed below:

Gujarat’s apostasy law: it might come as a surprise that India has an apostasy law, but in 2003, a time of great communal polarisation, the Gujarat legislature passed the Freedom of Religion Act, a wonderfully Orwellian name for a law that restricts religious freedom. The act made it mandatory for a person converting to another religion to take permission from the district magistrate first. Only if the district magistrate is convinced that the convert has undergone a true religious transformation is the change allowed. That an ostensibly secular state sits in judgment of whether a person’s religious choice is true or fraudulent might have been funny, if it wasn’t for the four-year jail sentence the law carries.
Gujarat’s Disturbed Areas Act: In Gujarat it is illegal for Hindus and Muslims to enter into a property transaction unless it has the permission of the government. As of 2013, 40% of Ahmedabad was notified under the act. While religious ghettoisation is a fact in most Indian cities, this legislation makes it official government policy.
Religion-based reservations: A Presidential Order dating back to 1950 makes all non-Hindu Dalits ineligible for Scheduled Caste reservations, saying only Hindu Dalits can avail of reservations in government jobs, higher education and legislative bodies. This was amended to include Sikh Dalits in 1956 and Buddhist Dalits in 1990, but it has still not been extended to the other religious groups. This also means that Christian and Muslim Dalits are not protected against anti-Scheduled Caste atrocity legislation.
Tax breaks on the basis of religion: A well-known yet oddly uncontroversial measure, the Hindu Undivided Family provides, in the words of T Ramanujam, “almost a perfect medium for tax avoidance”. It is open only to Hindus, Sikhs, Jains and Buddhists.

Though legal intervention is helping to reform religious law, the process is slow and haphazard, very often depending on the interpretation of a single judge. In such a situation, the establishment of a standard, progressive UCC would help by speeding up the reform and making them available to all Indians at a stroke. As the reform of Hindu personal law in the 1950s showed, the benefits of such a move would be wide-reaching.

Given the physical insecurities of religious minorities in India, however, introducing a UCC will be difficult. It is strange that the party that is its greatest proponent, the BJP, simultaneously champions theological issues such as temple construction and the mainstreaming of Hindu systems of medicine. This has led to fears that the UCC will be used to marginalise the interests of minority communities while submitting to majoritarian impulses.

If it is serious about introducing a UCC, the BJP, and consequently the government, must adopt a principled stand against all religion-based laws, working concurrently to remove discriminatory legislation, such as those discussed above. In this bundled approach lies the best chance of introducing a uniform code.

 
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