May 20, 2023
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
In the run-up to the Karnataka Assembly election, once again the saffron brigade demanded a Uniform Civil Code. It was a way of polarising the electorate, which, thankfully, failed. The Hindutva right-wing has pushed for a common personal law for decades, justifying it by claiming that Muslim personal law is regressive and that a Uniform Civil Code is needed for gender parity. That, of course, is disingenuous. No one in their right mind believes that the saffron right wing has the good of Muslims and especially Muslim women at heart. The Uniform Civil Code is another attempt to persecute and harass Muslims and other minorities, and to create a culturally uniform India – one that is majoritarian and in which everyone else is a second-class citizen.
India has different laws for various communities for matters such divorce and inheritance. However, the Hindutva right wing has demanded a single personal law for all citizens. While earlier NDA governments had made some noises about it, there was never a sustained move to implement a Uniform Civil Code. But now, after Narendra Modi came to power in 2014, there has been a strong push for it.
However, such a code would lead to widespread social disruptions. For instance, Muslim personal law is not uniform – many communities follow practices that have their roots in Hindu personal law in matters such as inheritance. There are also different laws for different states. For instance, states like Nagaland and Mizoram, where there are many Christians, have their own personal laws based on local customs. Goa, meanwhile, follows a 1867 common civil law applicable to all communities but with different rules for Catholics and other communities. This includes a provision that protects bigamy for Hindus.
Adoption is another matter of concern. Traditionally, among Hindus, adoption was to ensure a male heir and for a male to perform his parents’ funeral rites. In Islamic law, adoption is not recognised at all. However, there is a Central law that allows citizens to adopt, irrespective of religion.
Any common code would have to deal with marriage and divorce, adoption, alimony and inheritance. What principles would it apply then? Hindu law? Something in between all the various personal laws? This would be impossible, of course.
The Supreme Court has recognised the problem in various judgments and in 2018 the Law Commission said the code was neither “necessary nor desirable”. Besides, what is the value it would bring to society? After all, if the government believes there is gender inequity in some laws, nothing prevents it from amending those particular laws.
Actually, it’s clear to everyone that the BJP is pushing the code to create further religious polarisation which in turn pays electoral dividends. That is why it hasn’t introduced the code even in states it has ruled for a while.
Naturally, the spectre of the code has minority communities on edge. Recently, the All India Muslim Personal Law Board called the idea of a Uniform Civil Code “an unconstitutional and anti-minorities move”. The statement followed Uttarakhand Chief Minister Pushkar Singh Dhami saying his government was preparing the first draft of the code for his state.
Which are the other states mulling such a code?
Uttar Pradesh Deputy Chief Minister Keshav Prasad Maurya has said the state is planning one too. He said: “One law for all in one country is the need of the hour. It is required that we get out of the system of one law for one person and another for others. We are in favour of a common civil code.”
In Madhya Pradesh, BJP Rajya Sabha MP Ajay Pratap Singh urged Chief Minister Shivraj Singh Chouhan to constitute a panel to usher in a Uniform Civil Code.
Let’s examine what a Uniform Civil Code is. It would introduce personal laws applicable to all citizens, irrespective of religion. Essentially, it’s a common set of laws governing personal matters ranging from marriage and divorce to inheritance.
As of now, the personal laws applicable to you are based on your religion. These laws were made after considering customs and religious texts. For instance, Hindu personal law is based on ancient texts like the Vedas and the Upanishads, and modern concepts of justice. Muslim personal law is based on the Quran, the Sunnah (which refers to the sayings of Prophet Mohammad and his way of life) as well as Ijma (or consensus among Muslim jurists) and Qiyas (or analogical deduction). Christian personal law, meanwhile, is based on the Bible and traditions.
A Uniform Civil Code would entail scrapping these laws and replacing them with one common to all.
This has been on the BJP agenda for decades. In the 1998 elections, it was one of its poll planks — the others being the abrogation of Article 370 and the construction of a Ram Mandir in Ayodhya. The last two it has achieved, so the focus is now on the code.
Like I said earlier, it’s more complex than it sounds. In 2016, MP Asaduddin Owaisi pointed out that the code is not merely a Muslim issue. It would even be opposed in the Northeast, especially Nagaland and Mizoram. He was probably referring to the change in tribal laws if the code is introduced. Meghalaya, for example, has a matrilineal society in which inheritance and marriages are governed by traditional customs. In tribal areas of Nagaland, customs have primacy over federal law when it comes to marriage, land ownership, etc. You can’t simply throw all this out. In fact, the same concern has been voiced by tribal groups in the past. In 2016, the Rashtriya Adivasi Ekta Parishad approached the Supreme Court seeking protection of their customs and religious practices from a Uniform Civil Code.
A couple of months ago, the Supreme Court closed petitions demanding a Uniform Civil Code, saying that it is for Parliament to decide. These petitions were opposed even by the Central Government, even though it supports the enactment of the code. The government said it was opposed to the courts deciding the matter.
The fundamental problem with a Uniform Civil Code is that it violates the constitutional freedom to practice the religion of your choice. In this freedom is implicit the freedom to follow your faith’s personal laws. Article 25 gives every religious group the right to manage its own affairs and Article 29 gives them the right to conserve their distinct culture. There’s a reason the Fundamental Rights Sub-Committee of the Constituent Assembly of India did not adopt the code.
One of the slogans voiced in favour of the code now is ‘one nation, one law’. But even the Criminal Procedure Code and Indian Penal Code don’t follow the ‘one nation, one law’ philosophy. How can it then be applied to personal laws that are even more diverse? Take the Indian Evidence Act of 1872. It’s a federal act that was amended by West Bengal and Tamil Nadu. Take the legal drinking age; different states have different legal ages.
The fact is that the framers of the Constitution never wanted total uniformity. Personal laws were placed on the Concurrent List, giving both Parliament and states the power to legislate on them. If they wanted uniformity in personal law, the framers would have put the laws on the Union list alone.
Here’s the fear of what the BJP means by a Uniform Civil Code – a saffron-hued personal law for all communities. All communities, it is feared, would lose the right to practise their own customs and would have to adhere to laws relating to personal matters that would reflect Hindu laws. This, then, would amount to being part of the Hindutva project to nudge every identity other than the majority one to the periphery and to turn every minority member into a second-class citizen. To the saffron right wing, the Uniform Civil Code means just that.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at firstname.lastname@example.org. Catch you again soon.