TeaThe Bharatiya Janata Party government’s predictable move to reignite the controversy over the Uniform Civil Code has invited predictable reactions. opposition leaders have condemn the attacks This trick. Several opposition leaders have effectively pitched themselves against the UCC, questioning the need for the Law Commission to take it up again. Muslim organizations have gone step Further and condemned it as a sinister move which is against the minorities and the Constitution. The stage appears to be set for an ideological battle, both tragic and ironic, with the BJP pushing for the constitutional promise of the UCC and secular politics against it.
BJP must have scripted this debate exactly like this. It is a sign of our times that secular politics takes a back seat to whatever ground the Rashtriya Swayamsevak Sangh (RSS) and the BJP trespass on – Hinduism, traditions, nationalism and now the UCC. If this retreat is to be halted, secular politics must reclaim a principled and progressive position on the UCC. It must be emphasized that the UCC has nothing to do with the customs and practices of any one religion; It is about asserting the equal primacy of constitutional principles of equality between and within religious communities and ensuring gender justice equally. It should realize that opposing the idea of Uniform Civil Code is cheap politics. Moreover, it is a poor political strategy for the 2024 Lok Sabha elections.
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logic behind it
The idea of the UCC has a simple and powerful rationale: equality before the law. If all citizens can be governed by a single Penal Code, why not apply the same principles to the Civil Code as well? Different communities may enjoy their different customs and rituals, but how can a community be allowed to violate the fundamental rights of individuals? Can the right to religion or culture of a community be allowed to override the right to equality of women of that community?
These are not the arguments of the BJP. This was the rationale behind the original demand for the UCC by women’s organisations. This was the broad consensus within the Constituent Assembly. In fact, there was a proposal to put this provision in the fundamental rights which was put on the backburner in the context of partition. The above argument was used by Jawaharlal Nehru, BR Ambedkar and Ram Manohar Lohia while advocating UCC. And this was the basis of the feminist movement demanding UCC in independent India.
Article 44 of the Constitution contains this non-judicial directive principle: “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.” Those of us who keep demanding that the State should follow the Directive Principles enshrined in the Constitution cannot suddenly turn away from one of these core principles. We cannot say that 73 years after the adoption of the Constitution, the country is not ready for this idea.
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Question the Substance, Not the Label
The cons of UCC are also bad optics. The whole point of reviving this proposal, 10 months before a national election and five years after it was thoroughly discussed and rejected by the previous Law Commission appointed by the Modi government, is to open yet another site for minority bashing. Its purpose is to point out that parties like the Congress can shove reforms in family laws down the throats of Hindus, but dare not do the same for Muslims and Christians. The idea is to push the opposition into a photo-op with the conservative leadership of the Muslim and Christian communities. For example, in the matter of debate on triple talaq, the opposition is getting trapped in this trap.
Instead of opposing the idea of UCC, the opposition should question the misinterpretation of the ‘Uniform’ Civil Code by the BJP. Rather than objecting to the label, critics should invite debate on the substance of the proposed UCC. In this, the opposition can learn from the nuances and principles in this regard. Post Feminist movement that stands for orthodox religious conservatism as well as BJP’s attempt to appropriate this idea. And it can draw on very detailed and irrefutable arguments in the discussion. paper Prepared by the 21st Law Commission.
The BJP plays on the literal and superficial meaning of the ‘Uniform’ Civil Code. It assumes that uniformity implies singularity and uniformity. Therefore, in this reading, a ‘Uniform’ Civil Code must mean a law that replaces the multiple family laws existing in our country. And that law should have equal provisions for marriage, divorce, adoption and succession for members of all religious communities. This is the version the BJP wants to push forward. And it is this version that critics of the BJP want to counter. But this is a misinterpretation of the constitutional directive.
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Where ‘uniformity’ lies in UCC
The foresight of the social reformers, the intention of the framers of the constitution and the demand of the feminist movement invite a deeper understanding of the meaning of a ‘uniform’ civil code. A uniform code is neither identical nor singular; Instead, it contains general principles but differentiated rules. This is similar to the accepted principle of common but differentiated responsibility in climate justice negotiations. Here, uniformity would mean that all religious and social communities would be subject to the same constitutional principles. No family law of any community shall be allowed to violate the right to equality, right against discrimination and the idea of gender justice. Any custom or family law that violates these principles has to go.
Also, these general principles may take different forms for different communities depending on their existing or codified practices. Unlike Hindu customs, Muslim marriage is based on a contract marriage certificate, A ‘uniform’ civil code does not require Muslims to give it up, nor will it require Hindus to adopt it. Different communities to observe fundamentally different, even opposite customs and practices relating to marriage, divorce, adoption and inheritance, as long as they do not violate a common set of constitutional principles can continue.
The UCC will not happen in a day through a legislative stroke that wipes out everything that existed before it. Achieving the UCC in this approach would require three far-reaching legislative changes. First, it would require a comprehensive reform of the existing personal laws as suggested by the 21st Law Commission. This should include prohibiting and discouraging the legally acceptable but rare practice of polygamy among Muslims while safeguarding the interests of making provisions to protect the interests of women. This would also mean that in many cases protecting the interests of women is legally unacceptable but Present Practice of polygamy among Hindus and other communities, simplification of divorce and adoption among Christians, and abolition of notice period under the Special Marriage Act. The Law Commission has also recommended doing away with the principle of coparcener under Hindu law and the tax privileges of the Hindu Undivided Family. All these changes can be opposed by religious fundamentalists of the majority and minority communities. But secular politics must respond to that pressure.
The second legislative change would involve codification of customs and practices of various communities which are not yet covered by any law. For example, the principle that the interest of the child should be of paramount importance in any dispute relating to custody or guardianship needs to be incorporated in the law.
Third, the scope of the existing Special Marriage Act should be expanded to create a common civil code for citizens who do not wish to be governed by any of the existing community-specific family laws. A prototype of such a code already exists in Goa and is applicable to all Goan citizens, irrespective of religion. Ambedkar suggested a voluntary civil code along these lines.
For too long, secular politics has vacated the ground on which the BJP has intruded. UCC should not become another example of this suicidal politics. Instead of shying away from the idea, the opposition should demand UCC as suggested above. Instead of playing the BJP’s script and joining hands with the orthodox leadership of the minority communities, secular politics should expose the BJP’s bluff and ask it to come up with an adequate draft of the proposed UCC.
Yogendra Yadav is one of the founders of Jai Kisan Andolan and Swaraj India and is a political analyst. Thoughts are personal.
(Edited by Hamra Like)