BJP's UCC Warning: Majoritarian Morality Replaces Constitutional Rights

Ambedkar had warned that “constitutional morality is not a natural sentiment" and "our people have yet to learn it."

Uttarakhand Chief Minister Pushkar Singh Dhami with retired Supreme Court judge Ranjana Prakash Desai and other UCC panel members.

(Photo: PTI)

The Uniform Civil Code (UCC) Bill passed by the Uttarakhand Assembly gives the state the power to approve or punish non-marital sexual or romantic relationships. This should come as no surprise. The Rashtriya Swayamsevak Sangh (RSS) and organisations affiliated to it have propagated this position consistently throughout their existence.

For instance, the Akhil Bharatiya Vidyarthi Parishad (ABVP) campaigned against the “menace of live-in relationships.” The RSS condemned the UPA (United Progressive Alliance) government for the law against domestic violence which introduced the alien Western concept of live-in relationships in “Bharat,” and declared such relationships to be “against humanity, and Indian traditions and culture.”

A minister in the Modi cabinet demanded that live-in relationships require registration. A BJP MP called live-in relationships a “dangerous disease,” and demanded a ban; he also demanded that parental consent be a legal requirement for love marriages.

The pretext for this the part of the law dealing with live-in relationships is women’s safety. Once again, we are being pulled into that stale and fabricated “debate” of whether freedom is preferable to safety.

In fact, the issue at stake is not a matter of “debate,” because rights are not a prize for winning a debate.  

Majoritarian Calculations Deny the Autonomy of the Individual

The RSS has always considered constitutional morality based on liberty and equality to be un-Indian. M S Golwalkar, the organisations' second Sarsanghchalak, wrote in Bunch of Thoughts (1960) that democracy’s “unrestrained ‘equality of opportunity’ and ‘freedom of the individual’ [had] tragic results.” Are law and governance Bhartiya only if they enforce the moral views of the majority and the khap panchayat?

Some court judgments have expressed this constitutional principle very well. One judgment summed up the position on live-in relationships neatly: “A live-in relationship between two consenting adults” cannot be treated as an offence, “even though it may be perceived as immoral;” adding, “A major girl is free to marry anyone she likes or live with anyone she likes.”

The RSS claimed to have conducted a “survey” which showed that married women are happier than women in live-in relationships. How is “happiness” defined, one wonders. Intimate partner violence is an ugly reality whether or not couples are married. A young woman disowned by her parents for choosing a partner outside the community is more isolated and vulnerable to violence from her intimate partner, whether or not they are married.

The RSS “survey” is a useful example of its majoritarian morality as opposed to Constitutional morality. The National Family Health Survey-4 found that 52 per cent of women (and 42 per cent of men) surveyed justified domestic violence. Since the majority of married women support it, should domestic violence become law?  

Majoritarian calculations deny the autonomy of the individual. A woman who wants marriage today may change her mind in the future; and vice versa. A woman who thinks domestic violence is justified may (one hopes) change her mind in the future. An opinion that is supported by the majority today may change tomorrow.

This point was addressed by the Delhi High Court in its judgment reading down the criminalisation of same-sex relationships under Section 377: “...popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. ...If any type of “morality” can pass the test of compelling state interest, it must be “constitutional” morality and not public morality….constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”

But some courts too have strayed from this principle. Last year, a bench of the Allahabad HC declared that “middle-class morality cannot be ignored” because it was necessary for  the nations’s “stability - social, political and economic.” If middle-class morality is nationalist, live-in relationships are of course a conspiracy against the nation, a threat to national security: a “systematic design to destroy the institution of marriage in this country and destabilise the society and hinder the progress of our country.”   

The 'Happy' Mob

Ram Madhav writes that the Modi's government is the first one that makes “the mob” happy because it affirms the authority of “quintessentially Indian...religio-social institutions like state, family, caste, guru and festival”. If the RSS has its way, the rights of the individual Indian will be at the mercy of “state, family, caste, guru” and of course the “mob”.

What does a mob look like when it is happy and that, to quote him verbatim, "they are enjoying it"? Even before the mob lynching of Muslims in the name of cow protection, we had the mob lynching of women in the name of protecting “mother and daughters” from “immoral” influences.

Here are examples from just one state, Assam. A mob beat up a couple all night and shaved the woman’s head in Nagaon. A teenage woman coming out of a pub was sexually assaulted by a mob in Guwahati. Couples have been attacked by mobs on many occasions and TV stations have publicly shamed women for “skimpy clothes.” Even a woman MLA was not immune to such mob violence, especially if she was perceived to be a Hindu woman marrying a Muslim, and adulterous to boot.

Feminists have pointed out that in such gender riots, “in the name of our security, we can all be stripped of our dignity.”  

The Uttarakhand “anti-conversion ordinance” requiring inter-faith marriages to be approved by the state empowered violence against love jihad (relationships between Muslim men and Hindu women), and it quickly became the template for similar laws in many other BJP-ruled states. The UCC will do the same.   

Constitutional Morality Can Protect One Only if It Applies to Everyone

Hostility to individual liberty, especially in matters of sex, relationships, and marriage, is not unique to the RSS and the BJP, it’s widespread in most segments of Indian society.

Minorities and vulnerable groups are no exception. For instance, in 2013 the Jamaat-e-Islami Hind recommended to the Justice J S Verma Committee that “Only proper marriage contracted by [the] free will of man and woman should be recognised as legally permitted form of legal sexual intimacy. All sex outside marriage including live-in-relationship should be declared illegal and punishable.”

But constitutional morality is all or nothing: it can protect one only if it applies to everyone. The whole point of the concept of “rights” is that every human is born with them, so they cannot be taken away just because they are unpopular with the majority.

The appeal to constitutional principles when it comes to the UCC’s majoritarianism imposed on Muslim or Adivasi personal laws is weakened beyond repair when those principles are not defended in the case of women and queer people. The same applies to the rights of oppressed castes, that is, the rights to dignity and equality. 

At the very birth of the Constitution in 1948, Dr Ambedkar had warned that “Constitutional morality is not a natural sentiment … We must realise that our people have yet to learn it. Democracy in India is only a top dressing on Indian soil which is essentially undemocratic.”

Constitutional morality is based on the idea that rights must be defended on principle – even in cases where they are not popular. Those who defend these rights – even when, especially when such rights are unpopular – and those who seek to make these rights popular, are the leaders that India needs.  

The RSS and BJP tell us that they are decolonising our laws. They define democratic rights as colonial, and decolonisation as a return to “ancient” social prejudices of the majority. But India’s decolonisation journey began with the Constitution of India. And the Constitution envisioned decolonisation as inseparable from democratisation. Replacing a colonial power with a democratic state, and a colony with a Republic, meant embracing a vision of equality and fighting deeply entrenched inequality and prejudices.

India is at a crossroads today. Will we choose leaders who abandon the journey towards democracy, that began in 1947? Or will we the people of India defy all such “leaders” – and stay on that rocky democratic road, defending democratic principles especially when they are unpopular?

(Kavita Krishnan is a women's rights activist. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)