Recently, Uttarakhand Chief Minister Pushkar Singh Dhami
announced the implementation of a state-level Uniform Civil Code (UCC) and indicated at how his administration could set a precedent for others to follow. Ensuing the announcement, within a week, Mr Dhami announced the setting up of an “expert committee” through a
social media post. Several other Bharatiya Janata Party-ruled states have shown their inclinations to push UCC. Such decentralised approach by the BJP-led state governments to frame laws and enforce them minus a central legislation can have wider ramifications for the country. In the light of the Uttarakhand development, this piece will look at how has the political debate around a UCC evolved in India? Furthermore, if implemented, what can a BJP-sponsored UCC look like?
Background
The origins of personal laws can be at least traced back to the British colonial rule. The British administration was keen on creating a
lex loci for India as far back as 1840. Interestingly, they were
cognisant of the ‘personal’ needs of the communities. Though this
lex loci stressed on the need for codification of the laws, it forbore the codification of the personal laws.
The contention of the Muslim members was partially the result of their existential anxiety given a numerically weaker community was left in India after the bloody partition, and therefore, need for community protection, even if it was something as non-justiciable as the UCC.
Post-independence, the question of a UCC appeared in our Constituent assembly debates. Many arguments had a political undertone to them. For instance, Mohammad Ismail Khan very astutely tried to
invoke the consciousness of the majority community by asserting that they were equal 'beneficiaries' to such a provision that protects personal laws. In addition, the contention of the Muslim members was partially the result of their existential anxiety given a numerically weaker community was left in India after the bloody partition, and therefore, need for community protection, even if it was something as non-justiciable as the UCC. The Drafting Committee Chairman B.R. Ambedkar’s arguments were different from these more ‘religious’ and political ones and reflected sharp legal reasoning. Perhaps the first time that Ambedkar confronted the personal laws by way of a social justice argument in the assembly.
From Congress’s raison d’état…
Much of the ongoing debate around a UCC can be attributed to constitutional ambiguity. The absence of a comprehensive legal framework concerning how future parliamentarians were to deal with such a question was missing. The part on Directive Principles would reveal that Article 44 concerning UCC is one of the least articulate provisions in the Indian Constitution. A close reading of the debates also reveals that UCC was made non-enforceable, and thus a part of Directive Principles, as a compromise.
The year 1985-86 is crucial to understanding the debate. In the
Shah Bano case, the Supreme Court directed the husband of the old Muslim woman to provide her with maintenance following their divorce. There was an immense outcry amongst the Muslim community, particularly the powerful clerics, since the decision, perceivably, interfered with the Muslim personal laws. Sensing this, the Rajiv Gandhi government hurriedly passed a legislation overturning the judgment with a clear motive to appease the Muslim minority. This move was seen by the Hindu-nationalist BJP as an instance of unwarranted minority appeasement. Thus, this move by the government pushed through legislation not only politicised the issue but also, as women’s rights lawyer Flavia Agnes notes,
“set the tone for the communalisation of the demand for a UCC by condemning Muslim law as backward and anti-women.”
One can reasonably deduce from this information that the case, in actuality, concerned two Hindu women married to a bigamous Hindu husband.
In addition, institutions like the Supreme Court (rather than providing clarity) have been flirting with the controversial provision. A case in point was the top court’s manner of handling the issue of personal rights in Sarla Mudgal judgment. The case was one of bigamy where a Hindu man converted to Islam to legitimise his second marriage. Interestingly, the conversion to Islam was deceitful since post-marriage, both parties continued to follow the ‘Hindu’ way of life, and it was evident from the husband's
undertaking. One can reasonably deduce from this information that the case, in actuality, concerned two Hindu women married to a bigamous Hindu husband. Justice Kuldeep Singh’s judgment, however, gave the narrative a communal spin. Justice Singh stated that
“The Hindus along with Sikhs, Buddhists, and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India.” The major implication of such a statement was that this gave more impetus to an already communalised conversation.
…to BJP’s raison d’être
While UCC remains a major electoral plank for the BJP, it has occupied the centre-stage since the party won single majority in 2014 polls. In
all manifestos, since 1998, the BJP has emphasised the need for a UCC for national integration and gender justice. It has relentlessly pushed for a monolithic idea of India along the lines of the ideology of Hindutva, both in thought and action. In that regard, what will the contents of a UCC driven by an ideological motive be?
It must be acknowledged that electorally BJP is in a comfortable position to enact a law and establish the legitimacy. However, there is still a
democratic hesitancy that is visible due to an environment of trust-deficit created by the BJP. This trust-deficit is most visible through the minority community’s anxiety in claiming their rights as citizens under this regime.
The core of a BJP-sponsored UCC is likely to focus on interfering with the Muslim personal laws. The critical juncture to understand the relation between Muslim personal laws and the BJP is the
Triple Talaq case. On 28 December 2017, a bill was passed in the Lok Sabha
criminalising the practice of Triple Talaq. It was a win-win for BJP, and they
hailed it as a milestone in gender justice.
There is an element of control and transgression involved. In some sense, it can be claimed that this was also about controlling the agency of the Muslim community and simultaneously diabolising Muslim men.
However, does the act have nothing to do with the fact that it overstepped the boundary where the ‘secular'’ state meets the personal (community) law? There is an essential underlying argument that gets subsumed by BJP's larger narrative of gender justice. Further, there is an element of control and transgression involved. In some sense, it can be claimed that this was also about controlling the agency of the Muslim community and simultaneously diabolising Muslim men. In specific, and when looked at through the lens of UCC, motives to turn the matter into a zero-sum game by appropriating enough power to change the character of Muslim personal laws seems to be at play. Additionally, it is likely that the triple talaq case was never about women, thereby, flipping our expectations for the BJP's UCC. In principle, then, it becomes plausible to expect it to be antithetical to a
‘feminist’ UCC.
Conclusion
The UCC debate has significantly evolved over the past seven decades in India. Adopted as what seemed to be an almost harmless compromise, the UCC provision got politicised starting in the 1980s. All political dispensations over time have trifled with personal laws and the UCC. A new legal regime has come in place that has fractured the very fundamental basis of legal citizenship and rights of minorities by redefining who can and who cannot be a part of the collective political morality of the future. A case in point is the Citizenship Amendment Act (2019). In short, while all past dispensations tinkered with the UCC, the current regime’s manoeuvres are more concerning given its majoritarian character and the weaponisation of the provision based on its prevailing monolithic ideology in contrast to a pluralistic and deeply diverse country that India is.
Nachiket Midha is a Research Intern at ORF.
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