Indicating the need for wider consultation before taking a call on a uniform civil code, the government on Friday, asked the Law Commission to examine the issue.
In October 2015, Mohan Guruswamy had written for The Quint about how the issue has major implications for India’s notion of secularism.
A Common Set of Laws?
- Supreme Court gave the government three weeks to take a quick decision on a uniform civil code.
- Supreme Court’s advice has major implications for India’s notion of secularism.
- Those in favour of separate personal laws say that they are part and parcel of the freedom of religion.
- A large number of personal laws are unjust, arbitrary and unconstitutional.
The Supreme Court on Monday gave the government three weeks to take a quick decision on a uniform civil code (UCC) to end the confusion over personal laws. With remarkable alacrity Union Law Minister Sadananda Gowda said on Tuesday that a UCC was the “need of the hour and in national interest” and “a step should be taken in that direction.” A UCC has been a part of BJP manifestos and is a part of their creed, even if it is mostly inspired to belabour the Muslims over their personal laws.
Notion of Secularism
The Supreme Court’s advice has major implications for India’s notion of secularism. The 42nd Amendment of the Constitution of India enacted in 1976 asserted that India is a secular nation. However, the constitution and laws do not define the relationship between religion and state. The laws implicitly require the state and its institutions to recognise and accept all religions, and enforce various religious laws. Thus, secularism in India has come to just mean tolerance of every community’s practices, instead of skepticism of religious beliefs and practices. This is in direct contrast to the universal notion of secularism of the state being immune to religious considerations.
The legal argument by those in favour of the existing system of separate personal laws derives from the premise that “personal laws” are part and parcel of the freedom of religion guaranteed by Article 25 of the Constitution of India. This is despite the fact that Clause 2 of the same article specifically saves secular activities associated with religious practices from the guarantee of religious freedom. In this connection, it might be pertinent to recall the retort of Lord William Bentick, Governor General to some Calcutta notables, protesting the enactment of The Bengal Sati Regulation or Regulation XVII, A. D. 1829 of the Bengal Code. When he was told that sati was a time-honoured Hindu tradition, he replied “in my country we call it murder and have a tradition of hanging murderers. My tradition is better than yours and it is a better law.”
According to Article 13 of the Constitution “all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” Article 14 enshrines fundamental rights and equality of all. If personal laws were tested against the doctrine of equality under law, it will be found that a large number of them are unjust, arbitrary, and unconstitutional. Yet in matters of law in modern India the applicable code of law is unequal, and India’s personal laws - on matters such as marriage, divorce, inheritance, alimony - vary with an individual’s religion.
Reason Over Sentiment
Most of those who oppose a uniform civil code do so on the grounds that this is not the time as minorities, especially the Muslim community, are not ready for it. A “theological” argument has also been advanced, that these existing laws are God-given and, therefore, cannot be tampered with. The rationality of such an argument, and of the persons who advance them does not deserve any serious attention in this day and age. This is the same logic that wants us to suspend reason and believe that a particular God was born at a particular spot just because it is commonly believed so.
All laws, even the eternal ones, are man made, and reflect the level of thinking and advancement of human knowledge and civilisation at that moment of time. If we have to accept what lawgivers like Manu evolved in the period before the Gupta Empire or in medieval Arabia as sacrosanct, then we will forever be condemned to be governed by archaic, unequal and unjust laws. In the age of reason, the demand that people obey laws must be rooted in reason and not sentiment.
The cornerstone of a democratic society is equality. Without equality, there can be no justice, just as without justice there can be no equality. True justice cannot be based on unjust laws, though it is possible to have a law-abiding society with the most unjust laws in place. Just laws are a pre-requisite for a democratic society and, therefore a just and orderly society.
The task of modernisation entails the destabilisation of many institutions. Our founding fathers, Hindus and Muslims alike, in the process of seeking to modernise India, had destabilised and uprooted many traditional institutions. For instance they destabilised the hierarchy of castes. They also outlawed many discriminatory practices, apparently ordained by Hindu religion and custom.
Religious Obscurantism
The traditional objections of a uniform civil code hark back to the argument posed when the matter was debated in the Constituent Assembly. The two main objections then were that it would infringe on the fundamental right to freedom of religion guaranteed by Article 25, and that it would constitute tyranny of the majority. The first objection is misconceived because the directive in Article 44 does not infringe the religious practices as stated under Article 25.
This objection would be valid, if the laws of one community were made incumbent on the rest. However, if a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality, which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code.
It is this more equal society that all religious obscurantists fear most. Unfortunately, the political parties that profess to be secular and those who profess to oppose pseudo-secularism pander equally to obscurantism the most. That is the real problem.
(The author is chairman and founder of Centre for Policy Alternatives)
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