Uniform Civil Code | What kind of uniformity, whose code?

Though we do not have, as pointed out in this Deccan Herald opinion article, a draft Bill or a white paper on the Uniform Civil code (UCC), there is a raging debate, as well as fear in many quarters, as to the intention of the ruling Bharatiya Janata Party (BJP) as expressed in the pronouncements of Prime Minister Narendra Modi concerning the UCC.

Quite forthrightly, Nobel Laureate Amartya Sen used decidedly strong words when he said, “I saw in the papers today that there should not be any further delay in implementation of Uniform Civil Code. Where did such a stupid thing come from? We have been without UCC for thousands of years and can also be without it in future”. Further, he asserted, “Hindu Rastra cannot be the only way in which the country can progress and one should look at these questions with a broader outlook. Certainly there is an attempt to use… misuse the Hindu religion”.

Reacting to former United States President Barack Obama’s comment that India may pull apart over minority rights, Sen said that there are so many differences in the country in terms of class, religion, and gender which could all emerge as a challenge, and added “I am happy that Obama has pointed it out. But many others among us could have pointed it out easily”.

Also read | Debating an inclusive code

As can be explicitly seen, inherent in Sen’s comment is the lurking danger many academics, activists, and civil societies people in India hold — that the way the UCC is being stressed and bandied about by its proponents, the rules/laws would primarily be drawn from the majoritarian Hindu codes given that the practitioners of Hindu religion happen to be the predominant section in India. That would mean disregarding the fact that the Preamble to the Constitution declares India to be a ‘sovereign, socialist, secular and democratic republic’.

Also, the objectives stated in the Preamble are: to ‘secure justice, liberty, equality to all citizens and promote fraternity to maintain unity and integrity of the nation’. Given this, would not a UCC drawn chiefly from a single religion be running against the letter and spirit of the Constitution?

India is the most diverse of countries in the world harbouring different religions, castes, linguistic groups, tribal societies, and a multitude of ethnic groups in the different states and union territories. Should this linguistic diversity too be given a short shrift, as has been happening for years in promoting a single language (Hindi) as a vital one at the pan-India level in preference to 21 other scheduled languages?

Over the years diversity of different kinds, and in various measures, has in fact been increasing all over the world, and India is not immune to it. This is so because of cosmopolitanism combined with globalisation, which is over and above the extant diversity in India. So, India has come to be manifestly recognised as a country with a high degree of complexity which has been translated into a multitude of plural societies all through its length and breadth. In some quarters, it is indeed argued that India is a 'nation of nations’.

These ‘nations’ are based on different criteria and characteristics, the chief of which happens to be religion. So, how, and in what way would it be justified to draw laws/codes from just a single religion, and impose those as uniform codes throughout the country on these diverse ‘nations’?

In its 2018 Consultation Paper the Law Commission of India headed by Justice B S Chauhan (retd) declared that “uniform civil code which is neither necessary nor desirable at this stage”. It further held that while the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of the society must not be "dis-privileged" in the process. But the commission has now gone back on its earlier position and sought views from the different stake holders and public at large.

One of India’s most diverse regions that has numerous ethnic groups, the North-East, has already seen sharp reactions to the UCC proposal. There is strong justification for this in pointing out the seeming unconstitutionality in pushing for the UCC, as there already are the “presence of protections enshrined in Article 371A (special provision with respect to Nagaland) and 371C (special provision with respect to Mizoram) of the Constitution of India. A UCC could also come in conflict with the Sixth Schedule of the Constitution (which facilitates the establishment of autonomous district councils in Assam, Meghalaya, Mizoram and Tripura) …”.

Besides, as pointed out by advocate R Kattayan, “there would be significant doubt cast on many judgments [including those by the Supreme Court] that have recognised customary practices. And more broadly, all law is based on some custom. What will happen to that principle?”.

Also, it is pertinent to point out that since there already is plurality in codified civil and criminal laws, where is the justification to have a single law that could be applied to all the different communities, in the garb of a UCC, by replacing the respective personal laws of those communities?

True democracies are not satisfied with just the presence and tolerance of diversities, but strive to achieve and work diligently towards pluralism.

(M A Kalam, a social anthropologist, is Visiting Professor, Centre for Economic and Social Studies, Hyderabad.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.