The debate about a Uniform Civil Code is back in the headlines after Prime Minister Narendra Modi claimed at a political rally last fortnight that it was impossible for the country to function with a “dual system” with “one law for one member in a house and another for the other”.
Modi, like so many charmed by his magic, seemed to suggest that it is the Muslim community that opposes the idea of a common set of laws relating to marriage, divorce, inheritance and adoption that are applicable to all Indians. Most Indians are governed by personal laws specific to the religion that they follow.
In reality, that is one of the many presumptions about the Uniform Civil Code that is muddying the debate.
India’s deliberations about a Uniform Civil Code started a long time ago. The idea was advocated as early as 1934 by the All India Women’s Conference. But it was in the Constituent Assembly that framed the Constitution more than a decade later that the matter was discussed in great detail.
Considering the complexities involved, the members decided to defer the matter indefinitely. Most ingeniously, they decided to put the matter in the document’s Directive Principles, handing the responsibility of handling it to a future generation.
Many Indians now argue that because the Uniform Civil Code figures in the Directive Principles, it is a constitutional commitment. But they are only cherry picking details from the Constitution. The directives also require the Indian state to educate all its citizens, to ensure their health by providing nutritious food, ensure their right to work, provide them with free legal aid and much else.
Since none of these recommendations is politically cashable, an uncanny camaraderie across political parties ensures a collective silence on these commitments. On the contrary, when people like economist Amartya Sen remind the government about these obligations, the most vociferous champions of the Uniform Civil Code within the Bharatiya Janata Party ridicule him as anti-national, West-centric, or, at the very least, an unrealistic daydreamer.
It is important to recognise that the Indian state has over the years been systematically reforming the personal laws of Hindus, Muslims, Christians, Parsis and even the customary laws of tribal communities. It has done so by delivering all kinds of secular, compassionate judgments through its courts and specific issue-based legislations. In the process, it is stealthily moving towards what Werner Menski, the professor of South Asian Law at SOAS, describes as the “uniformisation of civil laws”.
Many Hindus seem to believe that the Muslim community is hell-bent on opposing a Uniform Civil Code – which is viewed as a panacea for all civil issues related to marriage, divorce, inheritance and adoption. Yet, if we take as our guide the Muslim experience in many Muslim-majority countries across the globe (Bangladesh and Pakistan included), it is abundantly clear that the community is not dogmatically attached to the sharia or Islamic law.
For instance, in 1961, Pakistan’s General Mohammad Ayub Khan introduced path-breaking personal law reforms through the Muslim Family Law Ordinance. It was a modernist set of laws that did away with many outdated sharia-based practices. Since Bangladesh was part of Pakistan then, this ordinance continues to be in operation there. too
In India too, the claim that the community will not be willing to give up their attachment to elements of Islamic law is belied by the fact that all Muslims are governed by India’s uniform criminal law – the Indian Penal Code – even though the sharia concerns criminal actions too.
It is therefore not difficult to imagine that, given a conducive political climate in which Indian Muslims feel secure about their cultural and social identity, they could welcome reforms in their personal laws.
Another important section of the population who receive insufficient attention in the debate are India’s indigenous peoples, who constitute 9% of the population. They broadly fall into three religious categories: Christians, Hinduised tribes and adherents of indigenous religions. Many balance their relatively recent Christian or Hindu identities with a continuing commitment to their tribal gods.
Tribal communities have their own complex customary laws, which are yet to be codified. Civil law and criminal law are intricately interwoven in tribal life. At the same time, the forces of economic development, particularly the peasantisation of tribes and the flow of development money, are complicating gender relationships in tribal belts.
The most virulent expression of these trends is the expanding practice of witch-hunting and witch-burning. According to the Association for Social and Human Awareness, a reputed NGO under the leadership of Poonam Toppo, whose own grandmother was persecuted as a witch, Jharkhand alone registered 371 witch killings between 2001 and 2008. At the core of most of these cases were property disputes and the issue of patriarchal domination of society.
India is a world in itself. Every few kilometres, the dialect and many social practices change. The vertically organised political structure is complicated by horizontally structured religious and caste groups. The existence of tribes adds to the complexity, as do the LGBTQ community and same-sex couples.
The views of all these diverse groups must be considered when drafting a Uniform Civil Code. The state is only one of the stakeholders. It is too much to expect the government’s Law Commission to be able to take the pulse of the nation simply by distributing some questionnaires to solicit opinions about the matter. To make the exercise meaningful, legal scholars across India’s universities and research institutes, lawyers dealing with cases related to personal and customary law, NGOs and others must all be involved in preparing a draft.
This may well take years and will no doubt produce a voluminous text. But it is a necessary first step. Once that draft is ready, a debate should follow. Only then should the standing committee of Parliament take it up and place it as a bill.
Naturally, all this will not be possible before the next general election. If the Modi government persists in its plans to achieve its half-baked Uniform Civil Code without bringing all the stakeholders on board, it runs the risk of sabotaging an otherwise good idea.
Partha S Ghosh, the author of The Politics of Personal Law in South Asia, is a Senior Fellow at the Institute of Social Sciences, New Delhi. His email address is parsarg@gmail.com.
