A uniform code would signal that as a progressive, mature and advanced democracy, the nation has transcended politics of caste and religion
The Uniform Civil Code (UCC) has been strongly recommended to ensure national integration amidst a diverse and pluralistic polity, as its advantages far outweigh disadvantages. First, it will help to bring in every Indian under the ambit of a single national civil code of conduct, regardless of religion, caste or gender, as also help in minimising vote bank politics that political parties indulge in during elections.
A uniform code would signal that as a progressive, mature and advanced democracy, the nation has transcended politics of caste and religion. While our economic growth has been on the ascendant, conversely, our social growth has been a laggard, especially with regards to global gender parity where India lags behind on most parameters. The UCC will confer fairer rights to women, as most religious personal laws are parochial and patriarchal in nature when it comes to equal rights in marriage, property ownership or inheritance. Many of the provisions of specific and archaic personal laws are in gross violation of human rights. However, although our constitution believes that a UCC should be implemented, it does not make this implementation mandatory.
Therefore, the exercise of devising a set of laws that will be applicable across communities is a very formidable task, considering the complexities involved in anticipating, including, compiling and envisaging a comprehensive and variegated range of interests and sentiments to be addressed. As anticipated, minorities anyways fear that it is a way of imposing the majority’s preferences to override their interests.
What will change after the UCC is implemented?
The UCC aims to provide protection to vulnerable sections of society as envisaged by Dr BR Ambedkar, particularly pertaining to women and religious minorities, while also promoting nationalistic fervour through unity. When enacted, the code will work to simplify laws that are segregated into silos at present on the basis of religious beliefs, like the Hindu code bill, Shariat law, and others.
The best way forward is if the UCC proposal is drafted keeping in mind the inclusive interests and best practices of personal laws drawn from all religions. This requires that a committee of eminent jurists be constituted to ensure the feedback of all stakeholders and sections of society. For the successful passage and enactment of the UCC, it requires spreading awareness, building consensus, and creating sensitisation programmes by jurists, intellectuals, academia and civil society, instead of using it as an emotive issue to gain political vantage.
Deterrents to building consensus on UCC
In 1948 when the Constitution of India was being framed the UCC was not adopted, as consensus building within a pluralistic country was difficult because India was an amalgamation of diverse ethnicities, religions and social structures. This diversity was reflected in our laws, so we had a legal system based on personal laws that were made keeping religious tenets, sentiments and traditions in consideration.
Besides, to unify such a diverse country through the principle of ‘One Nation One Law’ was a complex task, as Islamic fundamentalists and orthodox Hindus wanted the Sharia and the Shastras to determine personal laws. Clerics felt a UCC would undermine their authority, so they perceived and portrayed such a provision as a threat to religious freedom, and a potential cause that could trigger social unrest. Consequently, the founding fathers of the constitution made the provision optional. So, while criminal laws in India are uniform and applicable equally to all, no matter what their religious beliefs are, our civil laws are derived from, and influenced by faith.
Seven decades have passed, and the UCC still remains an unresolved and contentious issue. In the case of Muslim women, the discretion to frame new codes resides with the All India Muslim Personal Law board, a body run by clerics. The British supported its formation so that India remained segregated, which encouraged polarity, using the divide and rule strategy to their advantage. Because, if different communities had different rules, there would be fiction and division amongst communities, which suited the colonisers.
Unfortunately, this situation perpetuated even post-Independence. Though Dr Ambedkar was the strongest proponent of the UCC, the founding fathers of the constitution even at that time apprehended civil strife if the code was implemented, as the Muslims who stayed back after partition would feel insecure if a uniform civil code was introduced immediately after independence.
In the 2019 manifesto, the BJP promised to include the best provisions of personal laws drawn from different religions. Despite governing the country for eight years, a government with a strong majority has not yet been able to build consensus around its timing or implementation.
Preparing a viable draft
Critics feel UCC is a move against secularism, as it would target India’s Muslims, and view it as a conspiracy to impose majority Hindu’s views over minorities. They opine that personal laws are derived from religious scriptures, so it is prudent not to tamper with those sanctified tenets because it can trigger tension between communities. The proponents feel to the contrary, that it is a progressive legislation that will bring in uniformity, remove disparities and uplift both women and oppressed religious communities.
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However, the preamble to the Indian Constitution states that India is secular, democratic, republic. As India is not a theocratic state, this implies that there is no State religion, so a secular state shall not discriminate against anybody on the basis of religion, “as religion pertains to the relationship between man and God”. Such a code can thus be implemented in India, as it will not be violative of the right to profess one’s religion of choice.
A peek into international civil codes
The theory of civil law is directly attributable to the Romans who developed a code specific to the customs of Roman people, and termed it ‘Jus Civile’. This was country-specific, and a contrast to laws derived from the customs of all nations, known as ‘jus gentium’; or differed from the fundamental ideas of right and wrong implicit in the human mind, known as ‘jus naturale’.
Amongst the most progressive civil codes in the world is that of France, the Napoleon Civil Code, as the French Code “sought a balance between privilege and equality, customs and legal requirements.” The UCC is prevalent in France, the United Kingdom, the United States, and Australia. However, Kenya, Pakistan, Italy, South Africa, Nigeria, and Greece do not have it.
Though most countries of the Islamic faith have traditionally adopted Sharia law, such legislation has been modified or replaced by statutes inspired by European models. Islamic countries have in recent times reformed their personal laws to check their misuse, like Turkey, Tunisia, Morocco, Egypt, Jordan, etc, all of who codified personal laws as per their requirements, like abolishing polygamy or banning triple talaq. If Muslim countries can abolish medieval laws, if Western democracies can follow a universal civil code, we need to ask ourselves: why then are Indians living under laws passed pre-independence?
The questions that seek scrutiny are more legal than political. Progressive laws act as an instrument for social transformation. It is now the opportune time to unite India under a single universal law, as it would be a precursor to, and indication of the nation moving away from parochial politics of caste and religion, with the uplift for all and appeasement of none. We need to draw in judicial experts from diverse communities and faiths together so as to draft a comprehensive legislation which draws from the best practices of all religions and serves the evolving needs of a progressive 21st century India.
This is the concluding part of a two-part UCC series. Click here to read Part 1.
The author is former Chairperson for the NCFI, Niti Aayog. Views expressed are personal.
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