A certain machismo defines the Modi 2.0 regime. Buoyed by electoral success after success, the government at the Centre, as well as the states ruled by Mr Modi’s Party, have demonstrated a rare appetite to venture into territories which, until now, no predecessor had ‘dared’ to do.
A case in point is the political restructure of the erstwhile state of Jammu and Kashmir by a brilliant, yet blatantly underhand, legislative sleight of hand. The fact that the courts of law cannot get themselves to take up and adjudicate, in a timely fashion, on the legality of such adventures has only emboldened our rulers. Therefore, the adage “Fools dare where angels fear to tread” stands consigned to the dust bin of electoral rewards.
As the Modi Juggernaut goes about fulfilling one election manifesto item after another, I wish to add a note of caution on the latest pasture that seems to have captured the imagination of our rulers-the Uniform Civil Code.
Uniform Civil Code as an Election Issue
Interestingly, the Uttarakhand Chief Minister flagged the “uniform civil code” as an election issue in state where the party had been crippled by anti-incumbency and infighting that had seen two chief ministers being replaced in record time.
Given the demography of the state, which was overwhelmingly Hindu, the choice of the issue was rather surprising. Be that as it may, he triumphed and one of his first acts on re-election has been to set up a commission headed by the retired Supreme Court Justice Rajana Desai to advice on the way forward on a common code.
Why Indian Constitution Shied From UCC
The Pakistan movement held our Constitution making hostage for months as Jinnah’s Muslim League would not let the Indian Constituent Assembly function. When the fellow was finally given his “moth-eaten” nation, the reconstituted assembly began deliberating on India’s future constitutional arrangement under the shadow of Partition and the horrible genocide and transmigration of populations the sub-continent had just witnessed. It was felt that India’s moral superiority came from its inclusive character.
Our founding fathers (and those few 'mothers' such as Rajkumari Amrit Kaur) remembered how Jinnah’s obsession with being the sole spokesperson of India’s 'Mohammedans' had derailed the constitution of the Interim Cabinet.
Not only would he want the League to have the right to nominate all the Muslim Seats in the Viceroy’s Council, he was bitterly opposed to the Congress using its own quota to appoint Azad whom he dismissed as a “show piece” of the Hindu Party.
‘Jinnah free’, the framers could finally have a country where the government was one of all Indians and no person or party could claim to be the sole spokesperson of any community. Yet, when it came to the issue of the civil code, surprisingly, the Constituent Assembly opted for a compromise—it was included as a non-binding goal—a Directive Principle of State Policy.
The minority community, still dealing with the aftershocks of partition, was not ready for such a revolutionary change and the issue was put off for a later day when reform would be demanded by the community from ‘within’.
Now, if there was no longer a “sole spokesperson” for India’s muslims left, then who would articulate this demand?
India's Feminists Demand for UCC Got Appropriated
Indian feminists all the way till the mid-eighties raised this very moot question. Who will demand the reform and who will speak for India’s muslim women? In fact, during the Shah Bano controversy, when a poor divorced woman’s claim to maintenance was fought tooth and nail by her lawyer ex-husband all the way to the Supreme Court, the ‘representative’ of the community—the All India Muslim Personal Law Board—did not exactly cover itself in glory by opposing Shah Bano citing the Shariat to her face.
The Supreme Court bench of Justice Chandrachud waded into troubled waters and courted controversy by trying to justify the maintenance by referring to Koranic provisions rather than sticking to the secular law: the Constitution and the Code of Criminal Procedure.
To make matters worse, it advised the Muslims to take a relook at their laws to purge them of ‘time worn inconsistencies’.
The backlash was so brutal that not only was Shah Bano herself forced to denounce her own victory but also the Rajiv Gandhi government brought in a law to undo the judgement.
It was around this time that the right wing sniffed out the potential in high jacking the issue of law reform as it fitted in snugly with their “secularism is nothing but appeasement” narrative. This was also the time India’s women’s movement beat a strategic retreat realising how its genuine campaign for a uniform code had been weaponised by the right wing given its polarising potential.
'ONE Everything' Mantra of the BJP
Cut to the present, during the triple talaq issue as the Courts and thereafter the Parliament legislated to criminalise triple talaq, there was a sea change in the reaction of the community. This was a different India. The muslim minority was already on the backfoot. The compromised media left no stone unturned to generate a narrative that was difficult, if not impossible, to counter.
This has, thus, emboldened the ruling party to go whole hog. The assumption being that a uniform code would further seal the tough image of this government as one that can bite the proverbial bullet and not appease any section of the people.
While none will admit it on record, the calculation behind this strategy is that the change will impact on the minorities much more that the majority which is the committed vote bank of the ruling party. The fact that it would further wipe away the religio-cultural marker of a minority also would fit in snugly with the ‘one country one philosophy one leader, one etc‘ mantra of the present rulers.
Will Hindus Really Accept the Uniform Civil Code?
It would be interesting to see how this unfolds. A little research would reveal that polygamy is more rampant among India’s Hindus than Muslims. Coming to the template—which shall serve as the template? Would we consider the Portuguese Common Code already in place in Goa which not only makes registration of marriage compulsory but gives the Hindu wife half share in her husband’s property immediately on marriage? What would happen to the Hindu Undivided Family—a concept of tax saving and business planning for many a loyal supporter of the ruling party? Would the HUF be a casualty of the UCC?
Let's talk about the agricultural properties of the Hindus of Punjab which still devolve on principles of primogeniture-the eldest male inherits to the exclusion of all. Will the law of succession to agricultural properties be uniform? What about the Hindus and tribal supporters of the ruling party from the North East who are till today governed by tribal laws? Would the uniform civil code extend east beyond Bengal?
One might also have to spare a thought for the Hindus of Kerala and the influential Lingayat and Vokkaliga communities of Karnataka. Will the UCC mean the end of the road for local customs and laws applicable to these people? Hindus in the north follow the custom of saptapadi whereas in the South it is the tying of the thali (mangalsutra) that solemnises the marriage.
Would UCC also mean a uniformity of customs?
Matrimonial Laws Crying for Reform, But at What Cost?
When Ambedkar ignored all the doomsday sayers and passed his Hindu Code in truncated form, the Hindu Succession Act gave equal rights to the Hindu women. However, by law, the Hindu father or husband can disinherit or limit her rights. In contrast, while the Shariat gives the wife and the daughter half the share of the male heir, it also prohibits a man from taking away the woman’s share by simply giving it away through a will. So which example will the Uniform law emulate?
This is not to say that matrimonial laws are not crying out for reform. For starters, it's time to introduce “irretrievable breakdown” as a ground for divorce and make matrimonial proceedings time bound.
There is an ancient Chinese curse “May you live in interesting times”. Sadly my friends, that time is upon us!
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)