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Towards a Uniform Civil Code

Here's the funny thing about the debate over the uniform (or common) civil code:

nearly everybody who has contributed to it over the last fortnight has said almost the exact opposite of what ideological consistency demands that they should say.

 

   Take the Hindutvawallahs. Their broad position is that the idea of a secular India is a non-starter and that the sub-continent really consists of two nations: a Hindu nation and a Muslim nation. (In essence, this was also the position adopted by M.A. Jinnah and the Muslim League in the 1940s.)

 

   To stick with this position, they should then logically claim that as Hindus and Muslims are two different nations, two different cultures and perhaps, two different peoples, then they should also have two different personal laws.

 

   But of course they don't say that. When it comes to a uniform civil code then they quickly adopt the rhetoric of their secular opponents, talk about one India and one personal law. Suddenly there's no notion of two nations or two cultures.

 

   As ideologically inconsistent is the secularist position. If you define secularism in the sense laid down by Jawaharlal Nehru (rather than the sense invented by Mulayam Singh Yadav), then the essence of India is that we are one nation. We may follow different religions (and we should be free to do so), and we may speak different languages but when it comes to the law, we are equal.

 

   A harijan is entitled to the same privileges as a brahmin. A Muslim is as much a citizen of India as a Hindu or a Sikh. We may bend the laws and rules slightly to accommodate religious sensitivities (letting Sikhs off the obligation to wear motorcycle helmets for instance) but these will be exceptions rather than the rule. The essence of a secular state is one people under one set of laws.

 

   And yet, today's Nehruvian secularists don't take the logically consistent position and recognise that 50 years after independence, it is absurd to have a Hindu marriage act or a Parsi family law or a set of Muslim personal laws. As long as these laws remain in the statute books, we'll always be Hindus, Muslims, Parsis, Sikhs, Christians or whatever. We'll never become Indians.

 

   Instead, they go to the other extreme. They argue that the adoption of a uniform civil code would be a blow against secularism. The key to secularism, they suggest, lies in keeping religious laws alive.

 

   These apparent logical inconsistencies are only resolved when you go beyond the stated agendas and follow the subtext beneath each publicly proclaimed position.

 

   The Hindutvawallahs are not really saying "we are one nation with one set of laws", no matter their rhetoric. What they are really saying is this: "yes, we are two nations. The Muslims have got theirs in Pakistan. But we Hindus were done out of ours by secularists like Nehru who insisted that India would be a secular rather than Hindu state".

 

   Their position on the civil code follows from this unstated position: "we are a Hindu nation no matter what the secularists may claim. And if Muslims want to live in Hindu India then they should follow a Hindu civil code. If they want their own personal law then they should go to Muslim Pakistan.

 

   The secularists engage in the same kind of double-speak. In their hearts they know that it makes no sense to have so many religious personal laws. Worse still, many of these Personal Laws, as the furore over the Shahbano case demonstrated, are regressive and deeply unfair to women. So that's not the real reason why they oppose the adoption of a uniform civil code.

 

   Their concern is entirely different and it centers on the Muslim community. One of the greatest failures of Indian secularism — and let's face it, till 1996, the Congress pretty much ran the country with only a few brief interruptions — has been its inability to draw the bulk of the Muslim community into the national mainstream. The majority of India's Muslims today remain poor, badly educated and under-represented in most spheres of activity, from the all-India services to the lists of India's top industrialists. (Muslims account for over 12 per cent of our population, yet their representation in nearly every area is much lower.)

 

"But my point is this: how long are we going to deny the importance of secular values merely because we think that it is expedient not to give Muslim politicians another excuse to provoke their community?"

   One consequence of this has been the ability of unpleasant, narrow-minded leaders to hijack the community by preaching a divisive kind of politics. (And I don't just mean the Shahi Iman kind of person; the Samajwadi Party and the BSP are hardly models of progressive politics and yet, they attract Muslim votes.)

 

   These leaders have convinced India's Muslims that no matter how poor they are, no matter how much discrimination they face, they will be all right as long as they retain their own identity by following a Muslim Personal Law. The provisions of this Personal Law mean nothing to most Muslims — the most quoted provision is the right to have four wives but all studies show that many more Hindus have multiple wives than Muslims — but the very existence of this law is treated as a badge of independence for the community.

 

   When secularists say that they oppose the adoption of a uniform Civil code, what they really have in mind is this. They fear that Muslim leaders will rouse the community into protesting against the removal of Muslim Personal Law; that many, if not most, Muslims will feel that Hindus are discriminating against them. And that these consequence will damage Indian secularism.

 

   Hence the irony: you must be unsecular and uphold religious laws to protect Indian secularism.

 

   I don't think that the secularist fears are necessarily groundless. Just as Hindus have our nutcases, our Sadhvi Rithambharas and our Togadias, the Muslims also have their own fanatics and maniacs. It was this kind of person who created an unnecessary furore over the Shanbano judgment in the 1980s and ensured that many Hindus were fooled into believing that the essence of Muslim Personal Law lay in the right to keep marrying new wives while refusing to pay maintenance to the old ones.

 

   But my point is this: how long are we going to deny the importance of secular values merely because we think that it is expedient not to give Muslim politicians another excuse to provoke their community?

 

   One of the things that went wrong with Indian secularism in the 1970s and 1980s was that we lost sight of first principles. Every decision was subject to the pressures of so-called Muslim public opinion (such as the ban on The Satanic Verses) and a desire to win votes by appealing to the lowest common denominator.

 

   Push a secularist, show him the constitution and he will usually concede that a uniform civil code is a good thing in principle. But, he will add, the time is not yet right.

 

   Not yet? Not 56 years after independence? Then, when will it ever be right?

 

   I hold no truck with the Hindutva approach to a common civil code. No civil code will work in a secular country like India if it involves just copying out Hindu Personal Law. But that doesn't mean we can't adopt a civil code that incorporates the best features of all religious personal laws. Why can't a commission be set up — to draft a secular civil code for a secular India? Why is that, necessarily, 'anti-minority?'

 

   I doubt very much if Hindus will object too much if certain aspects of Muslim Personal Law are incorporated (judging by the sangh parivar's envy of the 'four wives' provision, they might actually welcome one or two lifts from Muslim tradition). Nor do I see Sikhs, Christians, Jains, Buddhists, Parsis and the like objecting to a single, secular, progressive code.

 

   The problem will, of course, be the response of the so-called Muslim leadership. Even if care is taken to study Muslim Personal Law and incorporate its best bits in the new code and even if the body that drafts the new law has substantial Muslim representation, there will still be those (and that includes cow-belt political parties headed by Hindus) who will seek to make political capital out of the view. They will be the usual cries of 'discrimination' and of 'Islam is in danger.'

 

   But a strong society and a confident nation should be ready to take that risk. If we are fair in our dealings, and we are true to the principles on which this country was founded, then we should fear nothing and let nobody — no matter how noisy — prevent us from doing what is right.

 

   Secularism is about protecting the minorities. But it is also about creating an India where religion remains a personal matter. And where the law and the state treat all men and women, no matter what their caste or creed, in exactly the same way. That's what a uniform civil code will represent.

 

This piece originally appeared in the Hindustan Times in 2003.

 

 

CommentsComments

  • Sanjay 14 Oct 2016

    Not necessarily Uniform Civil Code is the answer.

    People may be allowed to keep their personal laws but the sections of those laws which curtail personal freedom may be banned like Polygamy, triple talaq, child marriage etc etc

  • shobha ramana 14 Oct 2016

    What a thought provoking article! A truly secular uniform civil code, not just a Hindu civil code. I never, really thought about it that way. Setting up a commission to complete the task, taking the best from all religions and in a time bound manner will be a challenge to the government.

  • T. M. Devdan 29 Nov 2015

    There are quite a lot of sane minds in India who are busy going about fending for their middle class families. It is the upper class who rule the roost sitting in their currency-filled trunks. The labour class who'll swing this way and that decide the fate of India with their ballot power. You are right: it is difficult to bring out those who hold the reins onto a discussion table. If a statesman with integrity and wit (like T. N. Seshan) comes to the political arena, something will take place.

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